Skip to main content

Full text of "Accommodating the Spectrum of Individual Abilities"

See other formats 


Accommodating  the  Spectrum 
of  Individual  Abilities 


■jfc!-!,X,X>!,!,!,y,y»y'!'!«!«!«!"!«!«!«!' 

Bk 

■••••*•••••■••••••• 

•  •••••••••••••••••I 

>•••••••••••••  •  •  •  »  • 

Kv»» 

■.v.v.v.v.^y.v.v.Vi 

4755 
.A83 


>tates  Commission  on  Civil  Rights 


Clearinghouse  Publication  81 


September  1983 


U.S.  COMMISSION  ON  CIVIL  RIGHTS 

The  U.S.  Commission  on  Civil  Rights  is  a  temporary  indepen- 
dent, bipartisan  agency  established  by  Congress  in  1957  and 
directed  to: 

•  Investigate  complaints  alleging  that  citizens  are  being 
deprived  of  their  right  to  vote  by  reason  of  their  race,  color, 
religion,  sex,  age,  handicap,  or  national  origin,  or  by  reason  of 
fraudulent  practices; 

•  Study  and  collect  information  concerning  legal  develop- 
ments constituting  discrimination  or  a  denial  of  equal  protec- 
tion of  the  laws  under  the  Constitution  because  of  race,  color, 
religion,  sex,  age,  handicap,  or  national  origin,  or  in  the 
administration  of  justice; 

•  Appraise  Federal  laws  and  policies  with  respect  to  discrim- 
ination or  denial  of  equal  protection  of  the  laws  because  of 
race,  color,  religion,  sex,  age,  handicap,  or  national  origin,  or  in 
the  administration  of  justice; 

•  Serve  as  a  national  clearinghouse  for  information  in 
respect  to  discrimination  or  denial  of  equal  protection  of  the 
laws  because  of  race,  color,  religion,  sex,  age,  handicap,  or 
national  origin; 

•  Submit  reports,  findings,  and  recommendations  to  the 
President  and  the  Congress. 


MEMBERS  OF  THE  COMMISSION 

Clarence  M.  Pendleton,  Jr.,  Chairman 

Mary  Louise  Smith,  Vice  Chairman 

Mary  F.  Berry 

Blandina  Cardenas  Ramirez 

Jill  S.  Ruckelshaus 

Murray  Saltzman 

John  Hope  III,  Acting  Staff  Director 


Accommodating  the  Spectrum 
of  Individual  Abilities 


United  States  Commission  on  Civil  Rights  Clearinghouse  Publication  81  September  1983 


Preface 


In  1978  the  United  States  Congress  added  "discrimination  on 
the  basis  of  handicap"  to  the  jurisdiction  of  the  U.S.  Commission 
on  Civil  Rights.  Accommodating  the  Spectrum  of  Individual 
Abilities  builds  upon  a  2-day  consultation  the  Commission  held 
in  May  1980  on  "Civil  Rights  Issues  of  Handicapped  Americans," 
at  which  the  Commission  heard  from  nationally  recognized 
experts. 

This  monograph  focuses  on  the  issue  of  reasonable  accommo- 
dation because  of  its  central  importance  to  handicap  discrimina- 
tion law.  Part  I  of  the  monograph  provides  basic  information 
about  handicapped  people,  the  barriers  they  face,  and  their  legal 
rights.  Part  II  suggests  ways  to  resolve  legal  issues  concerning 
handicap  antidiscrimination  requirements. 


11 


■BMHB 


Acknowledgments 


The  Commission  is  indebted  to  Christopher  G.  Bell  and  Robert 
L.  Burgdorf,  Jr.,  staff  attorneys,  who  wrote  this  monograph. 
They  were  assisted  by  staff  attorneys  Anne  Meadows  and  Karen 
M.  Primack,  and  Ralph  Agritelley,*  law  clerk.  Jack  P.  Hartog, 
Assistant  General  Counsel,  directed  the  project. 

Ron  S.  Pizza  edited  the  monograph.  Vivian  Hauser,  Audree 
Holton,  and  Vivian  Washington  prepared  it  for  publication. 

Appreciation  is  also  extended  to  Michele  A.  Moree  and  to 
Lorraine  W.  Jackson  and  Frances  C.  Lee  for  their  support  and 
assistance  in  the  production  of  this  monograph,  and  to  the  staff 
of  the  National  Civil  Rights  Library. 

Overall  supervisory  responsibility  rested  with  Paul  Alexan- 
der,* Acting  General  Counsel,  for  the  initial  phases  of  this 
project,  and  with  Caroline  Davis  Gleiter,  Acting  General  Coun- 
sel, for  its  final  phases. 

The  Commission  expresses  its  gratitude  to  the  Department  of 
Labor  for  allowing  Thomas  Hodges,  a  labor  economist  and 
quadriplegic,  to  work  on  this  project.  Mr.  Hodges  died  shortly 
before  final  Commission  approval  of  the  monograph.  He  contrib- 
uted in  many  ways  beyond  shaping  and  drafting  parts  of  this 
document.  Commission  staff  regarded  highly  his  many  personal 
qualities  and  profound  commitment  to  the  highest  standards  of 
scholarship  and  the  full  participation  of  handicapped  people. 

*No  longer  a  member  of  Commission  staff. 


in 


CONTENTS 


Introduction  1 

PARTI 

1.  Who  Are  Handicapped  Persons? 4 

Defining  "Handicaps" 5 

Statistical  Overview  of  Handicaps 10 

Age 

Race 

Marital  Status 

Military  Service 

Types  of  Impairments 

2.  Discrimination  Against  Handicapped  People  17 

Historical  Background 17 

Prejudice  Toward  Handicapped  People 22 

Discomfort 

Patronization  and  Pity 
iv 


tma^^m 


Stereotyping 

Stigmatization 
Extent  of  Handicap  Discrimination 27 

Education 

Employment 

Institutionalization 

Medical  Treatment 

Sterilization 

Architectural  Barriers 

Transportation 

Other  Areas 

Forms  of  Handicap  Discrimination 40 

Changing  Discriminatory  Practices  and  Prejudiced  Attitudes 42 

3.  Federal  Civil  Rights  Law  and  Handicapped  Persons 46 

Rehabilitation  Act  of  1973 47 

Education  for  All  Handicapped  Children  Act 56 

Developmental  Disabilities  Assistance  and  Bill  of  Rights  Act 59 

Architectural  Barriers  Act 61 

Constitutional  Protections  for  Handicapped  Persons 62 

4.  The  Goal  of  Full  Participation 67 

The  Costs  and  Benefits  of  Full  Participation 69 

Rehabilitation 


Employment 
Education 
Institutionalization 
Transportation 
Architectural  Barriers 

The  Meaning  of  Full  Participation 82 

Normalization 
Independent  Living 
Developmental  Model 
Dignity  of  Risk 

PART  II 

5.     Orienting  Principles  of  Handicap  Discrimination  Law  86 

The  Spectrum  of  Physical  and  Mental  Abilities 87 

The  Role  of  Social  Context 89 

Relating  the  Spectrum  of  Abilities  to  Social  Contexts 91 

Reality  Distorted:  The  Handicapped-Normal  Dichotomy 93 

Legal  Implications  of  the  Spectrum  and  Social  Context  Princi- 
ples      97 

Exclusions  Based  on  Inaccurate  Generalizations 

Equal  Opportunity  and  Reasonable  Accommodation 

Individualization 

vi 


H^^^a^^HM^HH^^H 


6.    Legal  Standards  for  Reasonable  Accommodation  102 

What  Is  Reasonable  Accommodation? 104 

Southeastern  Community  College  v.  Davis:  Reasonable  Accommo- 
dation as  Part  of  Nondiscrimination  Law 108 

Defining  Qualified  Handicapped  Individuals 114 

Stated  Qualifications 

Essential  Functions  and  Capability  of  Benefiting 

Role  of  Accommodations  in  Determining  Who  Is  Qualified 

Individualizing  Opportunities 118 

Providing  Equivalent  Opportunities 122 

Limitations  Upon  the  Obligation  to  Accommodate 124 

Incidental-Essential  Distinction 

Fundamental  Alterations  Not  Required 

Cost  Limitations 

Differing  Standards  in  Differing  Societal  Areas 

Exclusionary  Classifications 129 

Removing  Architectural,  Transportation,  and  Communication 
Barriers 134 

Architectural  Barriers 

Transportation  Barriers 

Communication  Barriers 

Conclusion 1 39 


vn 


7.     Applying  Civil  Rights  Law  to  Handicap  Discrimination  141 

Distinguishing  Features  of  the  Handicap  Classification 142 

Functional  Limitations 

Indefinite  Membership 

Causation 

Nonexclusivity 

Other  Differences 
Applying  Established  Civil  Rights  Law 147 

Legal  Standards  Defining  Discrimination 

Neutrality  Toward  Class  Characteristics 

Affirmative  Action  and  Nondiscrimination 

Use  of  Statistics 

Conclusions 159 

Overall  Conclusions 159 

Differing  Abilities  and  Social  Context 160 

Reasonable  Accommodation 162 

Individualization 

"Qualified  "  Individual 

Stated  Qualifications  and  Selection  Criteria 

Equivalence 

Limits  on  the  Duty  to  Accommodate 
viii 


Applying  Established  Civil  Rights  Law  to  Handicap  Discrimina- 
tion     163 


Appendices 

A.  Outline  of  Issue  Areas  of  Discrimination  Against  Handi- 
capped People 165 

B.  Handicap  Civil  Rights  Statutes 169 

C.  Charts 173 


IX 


Introduction 


Almost  30  Federal  laws  and  numerous 
State  and  local  laws  prohibit  discrimina- 
tion against  handicapped  persons.  The 
principle  underlying  such  laws — that 
handicapped  people  are  entitled,  as  a 
matter  of  social  justice,  to  a  fair  and 
equal  chance  to  participate  in  American 
society — is  seldom  disputed.  Statutes 
prohibiting  discrimination  against  hand- 
icapped individuals  have  had  broad  bi- 
partisan support,  as  have  government 
benefit  and  service  programs  for  handi- 
capped citizens.  Attempts  to  pare  down 
or  eliminate  services,  benefits,  and  safe- 
guards for  handicapped  people  have  re- 
peatedly been  defeated  as  a  result  of 
efforts  by  strong  coalitions  of  diverse 
public  interest  groups.1 

The  effects  and  application  of  handi- 
cap civil  rights  laws,  however,  are  not 
well  understood,  despite  nearly  unani- 
mous support  of  their  overall  purpose. 
Legal  analysis  and  interpretation  are  not 

1  See,  e.g.,  Felicity  Barringer,  "How  Handi- 
capped Won  Access  Rule  Fight,"  The  Washington 
Post,  Apr.  12, 1983,  p.  A-15;  Joanne  Omang,  "Bell 
Withdraws  6  Proposals  for  Educating  Handi- 
capped," The  Washington  Post,  Sept.  30,  1982,  p. 
A-l. 

2  See,   e.g,   Henry  Fairlie,   "We're  Overdoing 


fully  developed,  and  there  are  popular 
misconceptions  about  their  require- 
ments. As  a  result,  many  people  harbor 
reservations,  concerns,  and  unanswered 
questions  about  civil  rights  provisions 
that  protect  handicapped  people:  Do 
handicap  antidiscrimination  statutes 
only  prohibit  discrimination  against 
handicapped  people,  or  have  they  been 
interpreted  and  applied  to  provide  ex- 
traordinary privileges  to  handicapped 
individuals  not  available  to  other  citiz- 
ens?2 Are  handicapped  people  making 
unlimited  claims  on  public  funds  to  re- 
move anything  that  inconveniences 
them?3  Is  discrimination  really  a  serious 
disadvantage  to  handicapped  people,  or 
do  most  of  their  problems  result  from 
their  own  innate  limitations?  Can  society 
afford  to  accommodate  the  needs  of 
handicapped  people?  Are  we  "overdoing 
help  for  the  handicapped"?4  What  is  the 

Help  For  the  Handicapped,"  The  Washington 
Post,  June  1,  1980,  p.  D-l  (hereafter  cited  as 
Fairlie). 

3  See,  e.g.,  "Must  Every  Bus  Kneel  to  the 
Disabled?"  (editorial),  New  York  Times,  Nov.  18, 
1979,  p.  18-E;  Fairlie,  p.  D-l. 

4  Fairlie,  p.  D-l. 


1 


concept  of  "reasonable  accommodation," 
how  is  it  applied,  and  what  are  its  limits? 

The  aim  of  this  monograph  is  to  exam- 
ine such  questions,  the  purpose  and 
content  of  handicap  civil  rights  laws,  the 
problem  of  discrimination  they  seek  to 
remedy,  and  the  emerging  legal  princi- 
ples concerning  the  rights  and  obliga- 
tions arising  under  such  laws.  In  particu- 
lar, the  monograph  focuses  on  "reason- 
able accommodation,"  a  requirement 
that  has  become  a  pivotal  concept  in 
handicap  antidiscrimination  law  because 
it  serves  as  a  realistic  middle  ground 
between  doing  nothing  and  doing  every- 
thing to  assist  handicapped  people. 

One  major  misconception  the  mono- 
graph seeks  to  dispel  is  that  accommo- 
dating handicapped  persons  to  allow 
their  participation  is  necessarily  a  diffi- 
cult and  expensive  proposition.  Overem- 
phasis of  "worst  case"  illustrations  has 
engendered  some  confusion  and  appre- 
hension. One  widely  publicized  example 
involved  a  Federal  regulation  that  pur- 
portedly required  a  substantial  expendi- 
ture to  build  ramps  to  a  library  in  a 
small  Iowa  town,  although  none  of  the 
residents  used  wheelchairs.5  In  another 
example,  Time  magazine  reported  that  a 
California  firm  spent  $40,000  to  lower  all 
of  its  drinking  fountains.6 

Less  publicity  has  highlighted  accom- 
modations provided  at  little  or  no  cost 

5  Steven  Roberts,  "Harder  Times  Make  Social 
Spenders  Hard  Minded,"  New  York  Times,  Aug. 
3, 1980,  p.  E-3. 

6  "Helping  the  Handicapped:  Without  Crippling 
Institutions,"  Time,  Dec.  5, 1977,  p.  34. 

7  E.I.  du  Pont  de  Nemours  and  Company,  Equal 
to  the  Task:  1981  du  Pont  Survey  of  Employment 
of  the  Handicapped  (1982),  p.  17;  U.S.,  Depart- 
ment of  Labor,  A  Study  of  Accommodations 
Provided  to  Handicapped  Employees  by  Federal 
Contractors,  (1982),  vol.  1,  pp.  ii,  28-35  (hereafter 


with  significant  benefits  to  handicapped 
people: 

•  Installing  paper  cup  dispensers  to 
allow  people  in  wheelchairs  to  use 
water  fountains; 

•  Adding  inexpensive  braille  or 
raised  letter  and  number  tabs  to  doors 
and  elevator  control  panels; 

•  Changing  desktops  and  tables  to 
appropriate  heights  for  persons  who 
are  very  short  or  who  use  wheelchairs; 

•  Providing  concrete,  step-by-step  in- 
structions for  mentally  retarded  peo- 
ple; 

•  Providing  a  wooden  pointer  for 
reaching  the  upper  buttons  on  an 
elevator  control  panel; 

•  Moving  a  program  or  service  to  an 
accessible  part  of  a  building  so  that  a 
handicapped  person  can  participate; 

•  Using  alternative  testing  proce- 
dures for  students  with  visual  impair- 
ments, learning  disabilities,  or  ortho- 
pedic impairments  that  interfere  with 
reading  or  writing  ability; 

•  Providing  seating  priority  for  mo- 
bility impaired  persons  for  whom 
standing  would  be  difficult. 

Studies  have  found  that  workplace  ac- 
commodations to  handicapped  individu- 
als frequently  cost  little  or  nothing.7  A 
U.S.  Department  of  Labor  study  conclud- 
ed that  accommodation  is  "no  big  deal."8 
In  other  contexts,  including,  particular- 
cited  as  DOL  Accommodation  Study).  The  Com- 
mission is  unaware  of  any  studies  contesting 
these  findings.  According  to  published  reports, 
leaders  in  the  business  community  have  general- 
ly endorsed  and  cooperated  with  efforts  to  in- 
crease participation  of  handicapped  people  in 
private  employment.  See,  Bob  Gatty,  "Business 
Finds  Profit  In  Hiring  the  Disabled,"  Nation's 
Business,  August  1981,  p.  30. 
8  DOL  Accommodation  Study,  p.  ii.  DOL  and  du 
Pont  studies  only  examine  accommodations  for 


ly,  mass  transit,  modifications  to  permit 
participation  by  handicapped  persons 
may  be  more  massive  and  costly.9 

To  provide  both  concrete  descriptive 
information  and  an  analytic  framework 
for  understanding  and  applying  handi- 
cap nondiscrimination  requirements, 
such  as  the  concept  of  reasonable  accom- 
modation, this  monograph  has  two  parts. 
The  first  part  provides  basic  information 
intended  for  a  general  audience;  the 
second  part  presents  conceptual  and  le- 
gal material  geared  primarily  toward  the 
needs  of  regulators,  judges,  lawyers,  and 
practitioners  who  set  and  implement 
policy. 

Part  I  consists  of  four  chapters.  Chap- 
ter 1  discusses  the  diversity  of  handi- 
capped individuals,  examines  definitions 
of  the  term  "handicapped,"  adopts  a 
definition  for  purposes  of  this  report,  and 
provides  a  statistical  overview  of  handi- 
capped people  as  a  class.  Chapter  2 
describes  ongoing  and  historical  handi- 
cap discrimination  and  examines  the 
prejudices  and  stereotypes  that  may 
prompt  discriminatory  actions  and  prac- 
tices. Chapter  3  summarizes  the  basic 

workers  who  are  employed.  They  do  not  review 
the  potential  substantiality  of  expenses  required 
for  accommodating  the  presumably  more  severe- 
ly handicapped  persons  not  currently  employed. 
See  DOL  Accommodation  Study,  p.  vii. 


legal  framework  governing  handicap  dis- 
crimination, explaining  the  major  appli- 
cable Federal  laws  and  constitutional 
guarantees.  Chapter  4  discusses  the  con- 
cept of  full  participation,  reviews 
Congress'  declared  overall  objective  for 
handicapped  people,  examines  the  costs 
and  benefits  of  full  participation,  and 
explores  the  goal's  essential  components. 
Part  II,  which  consists  of  three  chap- 
ters, suggests  an  analytic  framework  for 
answering  difficult  legal  questions  about 
handicap  nondiscrimination  require- 
ments, particularly  the  concept  of  rea- 
sonable accommodation.  Chapter  5  pro- 
vides a  conceptual  basis  for  understand- 
ing the  causes  of  handicap  discrimina- 
tion and  the  legal  principles  that  redress 
it.  Chapter  6  explains  legal  standards 
that  define  reasonable  accommodation 
and  the  scope  and  limits  of  its  applica- 
tion. Chapter  7  considers  how  established 
civil  rights  principles  and  analyses  apply 
to  discrimination  on  the  basis  of  handi- 
cap, concluding  that  any  concepts  not 
clearly  transferrable  should  not  be  me- 
chanically forced  into  this  new  area  of 
law. 

9  Issues  of  the  costs  and  benefits  of  participation 
by  handicapped  people  are  discussed  in  chap.  4 
under  the  section  entitled  "The  Costs  and  Bene- 
fits of  Full  Participation." 


Chapter  1 

Who  Are  Handicapped  Persons? 


Almost  everyone  knows  someone  who 
is  handicapped.  The  term  handicap  is 
commonplace  in  both  ordinary  usage  and 
legal  parlance.  But  we  seldom  think 
about  the  meaning  of  the  word  handi- 
capped, consider  the  range  of  people  to 
whom  it  applies,  or  realize  the  implica- 
tions of  imposing  this  label  on  individu- 
als. 

The  people  commonly  described  as 
handicapped  are  an  extremely  diverse 
group.  They  are  termed  handicapped  for 
a  number  of  very  different  reasons:  some 
are  unable  to  get  around  without  wheel- 
chairs; others  learn  at  a  slower  rate  than 
most  people;  some  experience  abnormal 
electrical  discharges  in  their  brains 
called  seizures;  and  still  others  have 
malformed  or  disfigured  facial  features. 
People  are  termed  handicapped  because 
they  "talk  funny"  or  "walk  funny";  be- 
cause they  cannot  hear  or  cannot  see; 
because  their  reasoning  and  thought 
processes  do  not  work  in  conventional 
ways;  because  their  limbs  are  missing  or 

1  In  accordance  with  the  preference  of  many 
handicapped  persons,  the  monograph  seeks  to 
avoid  using  handicapping  conditions  as  nouns 
(the  handicapped,  the  deaf,  an  epileptic,  for 
example)    to   describe    individuals   or   groups. 


malformed;  because  they  have  learning 
disabilities,  such  as  dyslexia  or  hyperac- 
tivity; because  they  have  disorders  like 
kidney  disease,  arthritis,  heart  disease, 
diabetes,  or  cancer;  or  even  because  they 
once  had  certain  conditions,  such  as 
mental  illness,  cancer,  or  seizures,  from 
which  they  have  since  recovered. 

It  is  difficult  to  identify  any  distin- 
guishing characteristic  or  unifying  trait 
in  this  remarkably  heterogeneous  group 
of  people  denominated  handicapped.  Yet, 
handicapped  people1  are  commonly  per- 
ceived as  a  distinct  class  of  people,  differ- 
ent from  the  rest  of  society.  Mental  and 
physical  impairments  are  generally  as- 
sumed to  make  the  individuals  who  have 
them  substantially  different  from  others 
and  to  limit  performance  or  achievement 
to  such  an  extent  that  the  individuals 
cannot  participate  successfully  in  society 
without  elaborate  and  costly  assistance. 
Later  sections  of  this  monograph  exam- 
ine such  assumptions  of  differentness, 
inability  to  achieve,   and  need  for  ex- 

Where  appropriate,  adjectival  or  prepositional 
phraseology,  such  as  handicapped  persons,  men- 
tally retarded  citizens,  and  persons  with  epilepsy, 
is  used.  In  quotations,  however,  original  usages 
have  been  retained. 


traordinary  help,  and  suggest  that  they 
are  both  oversimplified  and  distortive.2 
In  particular,  the  focus  upon  perceived 
individual  limitations  will  be  reevaluat- 
ed in  the  context  of  alternative  ways  of 
performing  tasks  and  activities  that  may 
prevent  a  physical  or  mental  limitation 
from  being  an  impediment  to  participa- 
tion. First,  however,  it  is  important  to 
understand  who  has  been  included  in  the 
classification  (covered  in  this  chapter), 
how  they  have  been  treated  (chapter  2), 
and  what  laws  and  governmental  pro- 
grams have  been  established  to  assist 
and  protect  them  (chapter  3). 

Defining  "Handicaps" 

There  has  been  some  controversy  re- 
garding the  usages  of  the  words  "disabili- 
ty" and  "handicap."3  Some  commenta- 
tors assert  that  disability  refers  to  a 
medical  condition  and  that  handicap 
refers  to  one's  status  as  a  result  of  a 
disability.4  Under  this  definitional  sys- 
tem, the  applicability  of  the  handicap 
label  depends  on  how  the  disabled  person 

2  See  chap.  5. 

3  This  section  relies  extensively  on  "Who  Are 
'Handicapped'  Persons?"  in  The  Legal  Rights  of 
Handicapped  Persons,  ed.  Robert  L.  Burgdorf,  Jr. 
(Baltimore:  Brookes,  1980),  pp.  1-52  (hereafter 
referred  to  as  The  Legal  Rights  of  Handicapped 
Persons). 

4  E.g.,  Steven  S.  Weiss,  "Equal  Employment  and 
the  Disabled:  A  Proposal,"  Colum.  J.  L.  &  Soc. 
Probs.,  vol.  10  (1974),  pp.  457,  461,  n.  23  ;  Bruce  E. 
Vodicka,  "The  Forgotten  Minority:  The  Physical- 
ly Disabled  and  Improving  Their  Physical  Envi- 
ronment," Chi.-Kent  L.  Rev.,  vol.  48  (1971),  pp. 
215,  220;  Buscaglia,  The  Disabled  and  Their 
Parents:  A  Counseling  Challenge  (1975),  p.  18, 
cited  in  The  Legal  Rights  of  Handicapped  Per- 
sons, p.  4;  Frank  Bowe,  Handicapping  America, 
Barriers  to  Disabled  People  (New  York:  Harper  & 
Row,  1978),  pp.  16-17. 

5  Saad  Nagi,  "Some  Conceptual  Issues  in  Disa- 
bility and  Rehabilitation,"  Sociology  and  Reha- 


interacts  with  his  or  her  environment;  a 
disabled  person  who  is  successful  in  the 
eyes  of  society  would  not  be  considered 
handicapped,  while  an  unsuccessful  dis- 
abled person  would  be. 

Other  authorities  have  taken  precisely 
the  opposite  view.  They  argue  that  the 
word  "disabled"  means  not  able  to  do 
things  and  affects  the  entire  person,  in 
contrast  to  "handicap,"  which  refers  to  a 
specific,  well-bounded  limitation.5  Thus, 
a  person  might  accept  that  he  or  she  has 
a  handicap,  but  strive  not  to  be  disabled. 

Whatever  validity  each  of  these  differ- 
ing semantic  approaches  may  have,6  the 
terms  disabled  and  handicapped  are  both 
used  in  laws,  professional  practice,  social 
service  programs,  and  general  parlance 
as  equivalent  terms  for  describing  a  class 
of  persons  with  physical  and  mental 
impairments.7  This  monograph,  there- 
fore, uses  the  words  handicap  and  disa- 
bility interchangeably. 

Webster's  dictionary  defines  handicap 
as  "a  disadvantage  that  makes  achieve- 
ment unusually  difficult."8      Although 

bilitation,  Marvin  Sussman,  ed.  (Washington, 
D.C.:  American  Sociological  Association,  1965),  p. 
103,  cited  and  discussed  in  John  Gliedman  and 
William  Roth,  The  Unexpected  Minority,  Handi- 
capped Children  in  America  (New  York:  Harc- 
ourt  Brace  Jovanovich,  Inc.,  1980),  p.  428,  n.  29 
(hereafter  cited  as  The  Unexpected  Minority); 
Legal  Rights  of  Handicapped  Persons,  pp.  5-6. 

6  For  a  discussion  of  this  controversy,  and  a 
presentation  of  some  authorities  on  each  side,  see 
The  Unexpected  Minority,  pp.  9-10,  and  428-29,  n. 
29. 

7  Kent  Hull,  The  Rights  of  Physically  Handi- 
capped People  (New  York:  Avon  Books,  1979),  p. 
15;  The  Legal  Rights  of  Handicapped  Persons,  pp. 
4-10. 

8  Merriam- Webster,  Webster's  Third  New  Inter- 
national (Unabridged)  Dictionary  (Springfield, 
Mass.:  G.&C.  Merriam  Co.,  1965),  p.  1027,  specifi- 
cally adopted  in  State  v.  Turner,  3  Ohio  App.  2d 
5,   209  N.E.   2d  475,  477   (1965),  and  Chicago, 


this  broadly  outlines  the  general  concept, 
it  does  not  fully  explain  the  nature  of  the 
disadvantage  or  the  achievement  and 
gives  no  standard  by  which  to  gauge 
whether  an  activity  is  "unusually  diffi- 
cult." The  terms  "handicapped  person" 
and  "handicapped  child"  generally  have 
narrower  meanings  referring  to  particu- 
lar types  of  "disadvantages" — mental, 
physical,  or  emotional  disability  or  im- 
pairment. This  may  be  elaborated  to 
include  a  list  of  specific  conditions,  such 
as  blindness,  deafness,  mental  retarda- 
tion, and  the  like.  These  categories,  al- 
though they  appear  to  be  clear  and 
precise,  reflect  arbitrary  judgments  of 
degree.  For  example,  the  group  of  per- 
sons considered  legally  blind  includes 
those  who  are  totally  blind  and  some 
with  limited  vision.  But  how  limited 
must  vision  be  for  one  to  be  considered 
legally  blind?  The  standard  has  been  set 
arbitrarily  by  social  or  legal  convention. 
Consider,  also,  mental  retardation, 
which  is  normally  assessed  by  examining 
an  individual's  level  of  adaptive  behav- 
ior9 and  intelligence  test  scores.  How 
maladaptive  must  behavior  be  and  how 
low  must  test  scores  be  for  one  to  be 
considered  mentally  retarded?  The  an- 
swers to  these  questions  are  neither  firm 
nor  infallible.  Society  has  consciously 
developed  the  criteria  to  establish  these 
standards. 


Definitions  using  the  terms  handicap, 
disability,  and  impairment  to  define  each 
other  tend  to  be  vague  and  not  very 
helpful.  Defining  a  handicap  as  "a  physi- 
cal or  mental  disability"  or  "a  physical 
or  mental  impairment"  is  basically  a 
tautology  that  does  little  to  clarify  the 
concepts.  One  must  look  further  for 
modifying  phrases  or  clauses  that  do  the 
real  job  of  defining  the  terms. 

Legal  and  governmental  definitions  of 
handicap  tend  to  be  formal  and  specific, 
depending  on  the  legislative,  regulatory, 
or  judicial  intention.  These  definitions 
use  several  approaches.10  One  approach 
is  to  enumerate  a  long  list  of  all  the 
conditions  chosen  for  inclusion  in  the 
definition.  To  define  physical  handicaps, 
for  example,  one  would  make  a  list  of  all 
the  possible  physical  handicaps  to  be 
included  (visual  impairments,  hearing 
impairments,  speech  impairments,  ab- 
sence of  major  extremities,  paralysis, 
etc.).11  Another  approach  to  defining  a 
handicap  is  to  tailor  the  definition  to  the 
governmental  purpose  of  the  particular 
statute  or  regulation  under  consider- 
ation.12 In  terms  of  eligibility  for  special 
education  services,  for  example,  the 
handicapped  child  might  be  defined  as 
one  who,  because  of  a  mental  or  physical 
disability,  needs  special  education  ser- 
vices. A  third  approach  involves  deferral 
to    professional    determinations    as    to 


Milwaukee,  St.  Paul  &  Pacific  R.R.  Co.  v.  State 
Dep't  of  Industry,  Labor  &  Human  Relations,  62 
Wis.  2d  392,  215  N.W.  2d  443,  446  (1974). 
9  Adaptive  behavior  refers  to  the  effectiveness 
or  degree  to  which  an  individual  can  meet  the 
standards  of  personal  independence  and  social 
responsibility  expected  of  his  or  her  age,  social, 
and  cultural  group.  See  The  Legal  Rights  of 
Handicapped  Persons,  pp.  38-40. 


10  Legal  Rights  of  Handicapped  Persons,  p.  14. 

11  Kg,  Ariz.  Rev.  Stat.  Ann.  §15-1011.3  (1975); 
R.I.  Gen.  Laws,  §28-5-6(H)  (1979).  See  Providence 
Journal  Co.  v.  Mason,  116  R.I.  614,  359  A.2d  682 
(1976). 

12  Kg,  42  U.S.C.  §423(d)(2)(A)  (1976);  N.Y.  Educ. 
Law  §4401(1)  (McKinney  1981). 


what  does  or  does  not  constitute  a  handi- 
cap.13 For  instance,  mental  illness  might 
be  defined  as  a  condition  defined  as  such 
by  a  psychiatrist.  A  mentally  retarded 
person,  under  such  an  approach,  would 
be  one  whom  a  doctor,  a  psychologist,  or 
another  professional  has  deemed  mental- 
ly retarded. 

Each  of  these  approaches,  if  used  al- 
one, has  its  limitations.  The  first  tends  to 
be  so  specific  that  it  may  exclude  persons 
with  impairments  or  disabilities  that 
cannot  be  neatly  categorized.  The  second 
approach  may  be  too  vague  for  determin- 
ing which  persons  were  meant  to  be 
included.  And  the  third  type  of  definition 
avoids  actually  explaining  the  terms  and 
defers  to  professionals. 

To  overcome  the  disadvantages  that 
each  approach  by  itself  encounters, 
many  legal  and  governmental  definitions 
use  a  combination  of  these  three  ap- 
proaches. The  Social  Security  Act,  for 
example,  combines  the  second  and  the 
third  approaches.  It  links  the  definition 
of  disability  with  the  ability  to  perform 
labor:  a  disability  that  does  not  affect 
one's  ability  to  work  is  not  considered  a 
disability.14  In  addition,  the  statute 
defers  to  the  medical  profession  to  deter- 
mine which  conditions  actually  prevent 
gainful  employment.15 

An  important  and  comprehensive  defi- 
nition  of  handicapped   individual   was 


13  E.g.,  Cal.  Educ.  Code  §56500  (West  1978);  Wis. 
Stat.  Ann.  §115.51(1)  (1973). 

14  Section  223(d)  of  the  Social  Security  Act,  42 
U.S.C.  §423(d)  (1976). 

15  Id. 

16  Rehabilitation  Act  Amendments  of  1974,  Pub. 
L.  No.  93-516,  §lll(a),  88  Stat.  1617  (1974). 

17  29  U.S.C.  §706(7)(A)  (Supp.  V  1981). 

18  29  U.S.C.  §§780-785  (Supp.  V  1981). 

19  29  U.S.C.  §§791-794  (Supp.  V  1981). 

20  29  U.S.C.  §794  (Supp.  V  1981). 

21  29  U.S.C.  §793(a)  (Supp.  V  1981).  The  act  as 


provided  in  the  Rehabilitation  Act 
Amendments  of  1974. 16  The  prior  defini- 
tion under  the  Rehabilitation  Act  had 
been  linked  to  employability  and  an 
individual's  ability  to  benefit  from  voca- 
tional rehabilitation  services17  — the  sec- 
ond definitional  approach  outlined 
above.  In  the  1974  amendments, 
Congress  chose  to  add,  for  purposes  of 
Title  IV18  and  Title  V19  of  the  act,  a 
totally  new  definition.  Among  other 
things,  this  statutory  definition  pertains 
to  provisions  requiring  nondiscrimina- 
tion against  handicapped  persons20  and 
to  affirmative  action  programs.21  The 
statute  states  that  handicapped  individu- 
al "means  any  person  who  (i)  has  a 
physical  or  mental  impairment  which 
substantially  limits  one  or  more  major 
life  activities,  (ii)  has  a  record  of  such  an 
impairment,  or  (iii)  is  regarded  as  having 
such  an  impairment."22 

Department  of  Health  and  Human 
Services  (HHS)  regulations  under  the 
antidiscrimination  provision,  section  504 
of  the  Rehabilitation  Act  of  1973,23 
expand  upon  and  clarify  this  statutory 
definition  of  handicap.  The  regulations 
explain  that  "physical  impairment"  re- 
fers to  any  physiological  disorder  or 
condition,  cosmetic  disfigurement,  or  an- 
atomical loss  affecting  an  important 
body  system.24  They  add  that  mental 
impairments  are  "any  mental  or  psycho- 
amended  is  described  in  chap.  3  in  the  section 
entitled  "Rehabilitation  Act  of  1973." 

22  29  U.S.C.  §706(7)(B)  (Supp.  V  1981). 

23  29  U.S.C.  §794  (Supp.  V  1981). 

24  In  medically  oriented  terminology,  the  regula- 
tions list  the  pertinent  body  systems  as  follows: 
"neurological;  musculoskeletal;  special  sense  or- 
gans; respiratory,  including  speech  organs;  car- 
diovascular; reproductive;  digestive;  genito-uri- 
nary;  hemic  and  lymphatic;  skin;  and  endocrine." 
45  C.F.R.  §84.3(j)(2)(i)(A)  (1982). 


logical  disorder,  such  as  mental  retarda- 
tion, organic  brain  syndrome,  emotional 
or  mental  illness,  and  specific  learning 
disabilities."25  The  regulations  also  de- 
fine "major  life  activities"  to  mean 
"functions  such  as  caring  for  one's  self, 
performing  manual  tasks,  walking,  see- 
ing, hearing,  speaking,  breathing,  learn- 
ing, and  working."26 

Appended  to  the  regulations  is  an 
"analysis  of  the  final  regulation"  that 
clarifies  and  explains  the  regulatory  lan- 
guage.27 It  explains  that  in  order  to 
provide  a  broad  and  comprehensive  defi- 
nition that  would  not  exclude  individuals 
who  did  not  fit  into  traditional  labeling 
categories,  HHS  intentionally  refrained 
from  listing  specific  diseases  and  condi- 
tions that  constitute  physical  or  mental 
impairments.28  The  HHS  appendix  ex- 
plains, however,  that  the  definition  in- 
cludes but  is  not  limited  to  conditions 


25  45  C.F.R.  §84.3(j)(2)(i)(B)  (1982). 

26  45  C.F.R.  §84.3(j)(2)(ii)  (1982). 

27  45  C.F.R.  §84.3(j),  app.  A,  sub.  A,  no.  3  at  294- 
95  (1982)  (hereafter  referred  to  as  "HHS  appen- 
dix A"). 

28  HHS  appendix  A  at  294.  This  appendix 
declares  that  in  addition  to  the  breadth  of  the 
conditions  described  in  the  regulations,  the  statu- 
tory definition  implicitly  includes  any  physical  or 
mental  impairment  whose  precise  nature  is  not 
currently  known.  HHS  appendix  A  at  295.  To 
commentators  who  had  suggested  that  the  defini- 
tion of  handicapped  person  is  unreasonably 
broad  and  that  the  definition  should  be  narrowed 
to  cover  only  "traditional"  handicaps,  HHS  re- 
plied that  "it  has  no  flexibility  within  the  statu- 
tory definition  to  limit  the  term  to  persons  who 
have  those  severe,  permanent  or  progressive 
conditions  that  are  most  commonly  regarded  as 
handicaps."  HHS  appendix  A  at  294. 

29  HHS  appendix  A  at  294.  This  definition  of 
handicap  has  at  times  raised  some  controversy  in 
that  it  has  included  conditions  such  as  drug 
addiction  and  alcoholism  under  the  definition  of 
"physical  and  mental  impairments."  (See  subpart 
A,  no.  4  of  HHS  appendix  A  at  295-96.)  Alcohol- 


such  as:  orthopedic,  visual,  speech,  and 
hearing  impairments,  cerebral  palsy,  ep- 
ilepsy, muscular  dystrophy,  multiple 
sclerosis,  cancer,  heart  disease,  diabetes, 
mental  retardation,  emotional  illness, 
drug  addiction,  and  alcoholism.29 

Although  the  definition  is  broad,  there 
are  limitations.  Only  physical  and  men- 
tal handicaps  are  included;  environmen- 
tal, cultural,  and  economic  disadvan- 
tages are  not  in  themselves  covered.  Nor 
are  prison  records  or  age.  Persons  with 
these  types  of  disadvantages  must  have  a 
physical  or  mental  handicap  in  order  to 
be  covered  by  the  definition  of  handi- 
capped person.30  The  appendix  to  the 
regulations  strongly  emphasizes  that  a 
physical  or  mental  impairment  does  not 
constitute  a  handicap  for  purposes  of 
section  504  unless  its  severity  is  such 
that  it  substantially  limits  one  or  more 
major  life  activities.31 

ism  and  drug  addiction  are  considered  diseases 
by  both  the  medical  and  legal  communities,  and 
HHS  has  had  a  long-standing  practice  of  treating 
addicts  and  alcoholics  as  handicapped  individuals 
eligible  for  rehabilitation  services  under  the 
Vocational  Rehabilitation  Act.  Congress,  how- 
ever, has  made  a  statutory  exception  relating  to 
alcoholism  and  drug  addiction  in  the  area  of 
employment.  Congress  states  that  the  term  hand- 
icapped individual  does  not  "include  any  individ- 
ual who  is  an  alcoholic  or  drug  abuser  whose 
current  use  of  alcohol  or  drugs  prevents  such 
individual  from  performing  the  duties  of  the  job 
in  question  or  whose  employment  by  reason  of 
such  current  alcohol  or  drug  abuse,  would  consti- 
tute a  direct  threat  to  property  or  the  safety  of 
others."  29  U.S.C.  §706(7)(B))  (Supp.  V  1981). 

30  HHS  appendix  A  at  294. 

31  Id.  The  regulations  do  not  explain  the  phrase 
"substantially  limits"  because  HHS  "does  not 
believe  that  a  definition  of  this  term  is  possible  at 
this  time."  Id.  It  is  interesting  to  contrast  this 
definition  with  that  used  by  the  Developmentally 
Disabled  Assistance  and  Bill  of  Rights  Act  (42 
U.S.C.  §6001(7)(D)  (Supp.  V  1981)).  The  statute 
states  in  pertinent  part: 


In  addition  to  the  first  part  of  the 
definition,  which  deals  with  actual  physi- 
cal and  mental  impairments,  the  second 
and  third  parts  of  the  statutory  formula- 
tion constitute  major  conceptual  ad- 
vances over  previous  definitions. 

The  statutory  definition  includes  per- 
sons who  have  a  record  of  an  impairment 
that  limits  one  or  more  major  life  activi- 
ties. This  encompasses  persons  who  had 
a  handicapping  condition  but  who  have 
recovered.  It  includes,  for  example,  per- 
sons who  in  the  past  had  mental  or 
emotional  illness,  heart  disease,  or  can- 
cer, but  who  no  longer  have  the  condi- 
tion. Further,  section  504  also  protects 
from  discrimination  persons  who  have 
been  incorrectly  classified,  as,  for  exam- 
ple, those  misclassified  as  mentally  re- 
tarded. 


The  term  "developmental  disability"  means  a 
severe,  chronic  disability  of  a  person  which — 

(A)  is  attributable  to  a  mental  or  physical 
impairment  or  combination  of  mental  and 
physical  impairments; 

(B)  is  manifested  before  the  person  attains  age 
twenty-two; 

(C)  is  likely  to  continue  indefinitely; 

(D)  results  in  substantial  functional  limitations 
in  three  or  more  of  the  following  areas  of 
major  life  activity:  (i)  self-care,  (ii)  receptive 
and  expressive  language,  (hi)  learning,  (iv) 
mobility,  (v)  self-direction,  (vi)  capacity  for 
independent  living,  and  (vii)  economic  suffi- 
ciency; and 

(E)  reflects  the  person's  need  for  a  combination 
and  sequence  of  special,  interdisciplinary,  or 
generic  care,  treatment,  or  other  services 
which  are  of  lifelong  or  extended  duration 
and  are  individually  planned  and  coordinat- 
ed. 


The  third  section  of  the  statutory 
definition  includes  persons  who  are  re- 
garded as  having  an  impairment  that 
limits  one  or  more  major  life  activities.32 
This  includes  persons  who  are  ordinarily 
considered  to  be  handicapped  but  who  do 
not  technically  fall  within  the  first  two 
parts  of  the  statutory  definition.  A  per- 
son with  a  limp,  for  example,  would  be 
covered  by  this  provision.  Also  included 
would  be  some  persons  who  might  not 
ordinarily  be  considered  handicapped — 
those  with  disfiguring  scars,  for  instance, 
as  well  as  persons  who  have  no  physical 
or  mental  impairment  but  who  are  treat- 
ed as  if  they  were  handicapped.33 

Full  understanding  of  the  section  504 
definition  of  a  "handicapped  person" 
requires  familiarity  with  its  three 
sources:  the  statute,  the  HHS  regula- 

The  Rehabilitation  Act  definition  requires  sub- 
stantial limitation  of  one  or  more  major  life 
activities,  while  the  Developmental  Disability 
Act  requires  substantive  functional  limitations 
in  three  or  more  major  life  activities.  The  latter 
also  has  an  age  requirement  for  manifestation — 
before  the  person  attains  age  22.  This  age  limit 
was  adopted  with  the  rationale  that  "individuals 
with  disabilities  occurring  during  their  develop- 
mental period  are  more  vulnerable  and  less  able 
to  reach  an  independent  level  of  existence  than 
other  handicapped  individuals  who  generally 
have  had  a  normal  developmental  period  on 
which  to  draw  during  the  rehabilitation  process" 
42  U.S.C.  §6000(a)(2)  (1981).  The  act  is  discussed 
in  chap.  3  in  the  section  entitled  "Education  for 
All  Handicapped  Children  Act."  The  phrase 
"developmental  disability"  also  attempts  to  dif- 
ferentiate between  a  disability  and  a  severe 
chronic  disability.  The  distinction  is  a  largely 
artificial,  but  important  one,  since  persons  who 
meet  the  criteria  of  the  developmental  disability 
definition  have  a  wide  range  of  services  available 
to  them  under  Federal  developmental  disabilities 
legislation. 

32  HHS  appendix  A  at  295. 

33  Id. 


tions,  and  the  analysis  that  accompanies 
the  regulations.  The  statutory  language 
is  extremely  broad  in  scope.  The  HHS 
regulations  define  some  of  the  terms  and 
list  broader  categories  of  conditions  that 
are  included  in  the  statutory  language. 
The  analysis  accompanying  the  regula- 
tions is  even  more  explicit,  providing 
concrete  examples  and  mentioning  many 
of  the  specific  conditions  that  are  consid- 
ered handicapping  conditions.  "In  con- 
cert, these  three  elements  produce  a 
definitional  approach  that  is  simulta- 
neously expansive,  flexible,  and  specif- 
ic."34 

The  section  504  explanation  of  handi- 
capped person  is  probably  the  most  com- 
prehensive and  useful  definition  to  date. 
In  providing  the  United  States  Commis- 
sion on  Civil  Rights  with  jurisdiction 
over  issues  of  discrimination  on  the  basis 
of  handicap,  Congress  expressly  instruct- 
ed the  Commission  to  employ  the  defini- 
tion of  handicap  set  out  in  this  section  of 
the  Rehabilitation  Act.35    Consequently, 


34  The  Legal  Rights  of  Handicapped  Persons,  p. 
29. 

35  42  U.S.C.  §1975c(e)  (Supp.  V  1981).  The 
statutory  cross-reference  to  the  Rehabilitation 
Act  definition  does  not  bind  the  Commission  in 
interpreting  its  jurisdictional  grant  to  the  HHS 
regulations  and  interpretation,  although  these 
may  be  informative  and  have  persuasive  value. 

36  The  Legal  Rights  of  Handicapped  Persons,  pp. 
31-46,  describes  in  some  detail  the  various  condi- 
tions that  are  generally  considered  handicaps 
under  most  statutory  formulations.  It  identifies 
the  following  major  categories:  (1)  hearing  im- 
pairment, including  deafness  and  hard  of  hear- 
ing; (2)  visual  impairment,  including  blindness 
and  partial  sightedness;  (3)  emotional  distur- 
bance and  mental  illness,  including  conditions 
classified  as  personality  disorders,  neuroses,  psy- 
choses, psychophysiological  reactions,  and  au- 
tism; (4)  epilepsy;  (5)  mental  retardation;  (6) 
orthopedic  and  neuromotor  handicaps,  including 
such  conditions  as  paraplegia,  quadriplegia,  cere- 


this  monograph  adopts  the  section  504 
understanding  of  handicapped  person  as 
its  working  definition.36 

Statistical  Overview  of 
Handicaps 

A  solid  data  base  is  necessary  to  the 
study  of  any  group.  Statistical  informa- 
tion helps  guide  research,  identify  and 
better  serve  members  of  the  group,  and 
provide  social  indicators  with  which  to 
measure  the  group's  relative  well-being 
within  society  over  a  period  of  time.37 
Perhaps  the  most  important  function  of 
such  information  is  to  help  ensure  pru- 
dent and  equitable  policy  decisions, 
many  of  which  involve  allocations  of 
resources. 

There  is  no  single  repository  of  ade- 
quate national  data  on  the  handicapped 
population.38  Instead,  demographic  in- 
formation must  be  culled  from  four  dis- 
tinct sources:  service  eligibility  statistics, 
service  delivery  statistics,  population 
surveys,   and   ad   hoc   studies.   Each  of 

bral  palsy,  polio,  muscular  dystrophy,  multiple 
sclerosis,  spina  bifida,  arthritis,  congenital  mal- 
formation, amputation,  and  dwarfism;  (7)  speech 
impairment;  (8)  learning  disabilities;  (9)  cosmetic 
disfigurement;  and  (10)  other  serious  health 
impairments. 

37  U.S.,  Commission  on  Civil  Rights,  Social 
Indicators  of  Equality  for  Minorities  and  Women 
(1978),  pp.  1-2. 

38  In  December  1981  the  Bureau  of  Social 
Science  Research,  Inc.,  under  contract  with  the 
National  Institute  of  Handicapped  Research, 
produced  a  report  that  examined  existing  statis- 
tical sources  and  made  recommendations.  This 
section  relies  heavily  on  the  bureau's  analysis. 
See  Richard  Roistacher,  Engin  Holmstrom,  Al- 
bert Cantril,  and  John  Chase,  Toward  a  Compre- 
hensive Data  System  on  the  Demographic  and 
Epidemiological  Characteristics  of  the  Handi- 
capped Population:  Final  Report  (Washington, 
D.C.:  Bureau  of  Social  Science  Research,  Inc., 
1981),  pp.  2-3  (hereafter  cited  as  BSSR  Report). 


10 


these  types  of  data  has  deficiencies.  Ser- 
vice eligibility  and  delivery  statistics  are 
limited  to  those  people  who  seek  specific 
services  from  certain  agencies;  the  data 
collection  lacks  breadth  and  standardiza- 
tion, and  the  records  are  often  duplica- 
tive or  incomplete.39  Existing  population 
surveys  have  a  variety  of  problems.  Some 
ask  general  questions  on  activity  restric- 
tions but  yield  no  accurate  or  detailed 
disability  information.  Others  are  rich  in 
diagnostic  information  but  tend  to  exag- 
gerate the  rate  of  disability  or  fail  to 
provide  adequate  information  about 
functional  limitations  or  activity  restric- 
tions. Other  surveys  report  major  restric- 
tions but  do  not  indicate  their  causes.40 
Ad  hoc  studies  tend  to  be  sharply  focused 
examinations  of  local  or  State  conditions. 


39  Ibid.,  p.  10. 

40  Ibid.,  p.  11. 

41  Ibid.,  p.  12. 

42  Ibid.,  p.  10.  For  example,  the  different  usages 
of  the  terms  "handicap"  and  "disability"  in  the 
Social  Security  Act,  42  U.S.C.  §423  (d)  (1976),  and 
the  Rehabilitation  Act,  29  U.S.C.  §§706(7)(A)  and 
(B)  (Supp.  V  1981),  hamper  any  correlation  of  the 
statistics  generated  by  the  various  programs, 
since  the  samples  are  divergent  by  definition. 
Disability  is  also  described  differently  for  various 
age  groups.  It  is  expressed  in  terms  of  education- 
al limitations  for  children  and  youths,  work 
limitations  for  adults,  and  activity  and  self-care 
limitations  for  elderly  people.  See  BSSR  Report, 
pp.  12-15;  118  Cong.  Rec.  3321  (1972).  Types  of 
data  on  handicapped  people  differ  in  additional 
ways.  Some  studies  are  limited  to  current  activi- 
ty limitations,  while  others  focus  primarily  on 
chronic  conditions;  some  count  impairments,  and 
others  count  individuals  with  impairments. 
BSSR  Report,  pp.  12-13. 

43  All  three  sources  use  a  self-report  method. 
Through  questionnaires  or  personal  interviews, 
people  are  asked  to  identify  any  work-disabling 
conditions  that  are  present  among  their  family 
members.  The  comprehensiveness  and  accuracy 
of  the  data  are  dependent  on  the  respondents' 
awareness  of,  knowledge  of,  and  willingness  to 
report  conditions  as  well  as  whether  or  not  the 


Because  these  limited  studies  are  not 
designed  to  take  national  samples,  it  is 
not  possible  to  extrapolate  from  them  to 
the  national  population.41 

The  available  statistics  are  difficult  to 
aggregate  because  of  inconsistent  metho- 
dologies and  definitions  used  by  the 
different  sources  of  data.42  The  primary 
sources  of  statistics  on  handicapped  per- 
sons in  the  United  States  are:  (1)  the 
Social  Security  Administration  (SSA), 
U.S.  Department  of  Health  and  Human 
Services;  (2)  the  National  Center  for 
Health  Statistics  (NCHS),  U.S.  Depart- 
ment of  Health  and  Human  Services; 
and  (3)  the  Bureau  of  the  Census,  U.S. 
Department  of  Commerce.  There  are 
major  differences  in  the  methodologies 
these  agencies  employ  to  collect  data43 

conditions  have  had  any  noticeable  effect.  Unre- 
ported or  undiagnosed  conditions  are  not  includ- 
ed in  the  estimates  based  on  household  interview 
data.  See  U.S.,  Department  of  Health  and  Hu- 
man Services,  National  Center  for  Health  Statis- 
tics, Prevalence  of  Selected  Impairments,  United 
States— 1977  (1977),  p.  2  (hereafter  cited  as 
Prevalence  of  Selected  Impairments). 
Social  and  psychological  factors  may  also  inhibit 
self-reports  of  functional  limitations.  And  be- 
cause the  surveys  attempt  to  measure  the  effect 
of  disability  on  work  and  housework,  they  may 
overlook  and  omit  all  the  handicapped  persons 
who  do  not  describe  themselves  as  "work-dis- 
abled." All  these  factors  can  cause  sampling 
error.  See  The  Unexpected  Minority,  n.  21,  pp. 
497-500. 

Each  of  the  reports  is  based  on  a  sample  of  the 
population  and,  therefore,  is  subject  to  sampling 
error: 

(a)  U.S.,  Department  of  Commerce,  Bureau  of  the 
Census,  1980  U.S.  Census,  Provisional  Estimate  of 
Social,  Economic,  and  Housing  Characteristics 
(1982),  p.  1  (hereafter  cited  as  1980  U.S.  Census). 
The  data  in  this  report  are  based  on  a  special 
subsample  of  the  full  census  sample,  represent- 
ing 8  percent  of  the  sample  census  questionnaires 
or  approximately  1.5  percent  of  the  total  national 
population. 


11 


and  in  the  criteria  each  uses  to  measure 
disability,44  which  makes  their  data 
difficult  to  compare. 

An  idea  of  the  overall  number  of 
handicapped  people  in  America  is  impor- 
tant for  determining  the  magnitude  of 
the  problem  of  discrimination  against 
handicapped  individuals.  Because  no  sin- 
gle study  adequately  provides  such  a 
figure,  estimates  must  be  drawn  from 
various  surveys  and  statistical  research. 
By  deriving  high  and  low  figures  from 
the  most  authoritative  sources,  it  is 
possible  to  define  a  range  within  which 
the  number  of  handicapped  people  in 
this  country  falls.  Such  an  estimated 
range  is  the  most  accurate  extrapolation 
that  can  be  made  and  improves  upon  the 
widely  divergent  estimates  sometimes 
quoted.  For  many  purposes,  such  an 
estimated  range  of  the  number  of  handi- 
capped persons  can  serve  as  a  useful 
approximation. 


(b)  Prevalence  of  Selected  Impairments,  pp.  2,  39- 
44.  The  sample  was  composed  of  approximately 
41,000  households,  including  111,000  persons  liv- 
ing at  the  time  of  the  interview.  Since  the 
statistics  are  based  on  a  sample,  they  will  differ 
somewhat  from  figures  that  would  have  been 
obtained  if  a  complete  census  had  been  used.  The 
results  are  also  subject  to  reporting  and  process- 
ing errors  and  errors  due  to  nonresponse. 

(c)  U.S.,  Department  of  Health  and  Human 
Services,  Social  Security  Administration,  Work 
Disabilities  in  the  United  States,  a  Chartbook 
(1980)  (hereafter  cited  as  SSA  Chartbook). 

44  For  example:  (a)  The  SSA  study  surveys 
persons  of  working  age  (18  to  64)  in  the  civilian, 
noninstitutionalized  population,  including  those 
who  are  limited  in  the  amount  or  kind  of  work  or 
housework  they  can  perform.  The  limitations 
must  have  resulted  from  a  chronic  condition  or 
impairment  of  at  least  3  months'  duration.  SSA 
Chartbook,  foreword,  (b)  The  Decennial  Census 
focuses  more  on  labor  force  characteristics  of  the 
noninstitutionalized  population  (inmates  and 
students  are  not  included).  The  Census  considers 
disabilities  only  when  they  exclude  people  from 


In  a  chartbook  published  in  December 
1980,  the  Social  Security  Administration 
estimated  that  17  percent  of  all  adults  of 
working  age,  some  21  million  people,  are 
limited  in  their  ability  to  work.45  These 
include:  (a)  severely  disabled  persons — 
those  unable  to  work  at  all  or  unable  to 
work  regularly;  (b)  occupationally  dis- 
abled persons — those  able  to  work  regu- 
larly but  unable  to  do  the  same  type  of 
work  as  before  the  onset  of  disability  or 
unable  to  work  full  time;  and  (c)  persons 
with  secondary  work  limitations — those 
able  to  work  full  time,  regularly,  and  at 
the  same  occupation,  but  with  limita- 
tions in  the  kind  and  amount  of  work 
they  can  perform.46  Many  people  in  this 
last  category  probably  are  not  covered  by 
the  Rehabilitation  Act's  definition  of 
handicapped,47  which  this  monograph 
uses.  Therefore,  the  SSA  overall  calcula- 
tion should  be  revised  to  exclude  the  5 
percent  of  the  working-age  population, 

the  labor  force.  Work  disabilities  must  have 
lasted  for  6  or  more  months  to  be  considered 
disabilities;  housework  limitations  are  not  in- 
cluded. The  survey  covers  persons  between  the 
ages  of  16  and  64.  1980  U.S.  Census,  pp.  14-15, 
app.  B-4.  (c)  The  National  Center  for  Health 
Statistics  conducts  the  National  Health  Inter- 
view Survey  (NHIS).  The  survey  includes  the 
civilian,  noninstitutionalized  population  of  all 
ages.  It  covers  housework  limitations,  and  a 
condition  need  not  last  for  a  specified  number  of 
months  to  be  considered  a  disability.  Prevalence 
of  Selected  Impairments,  p.  2. 

45  SSA  Chartbook,  chart  1. 

46  Persons  with  limited  ability  to  perform  house- 
work are  included  in  this  group.  U.S.,  Depart- 
ment of  Health  and  Human  Services,  Social 
Security  Administration,  Disability  Survey  1972, 
Disabled  and  Nondisabled  Adults  (1980),  p.  326. 

47  29  U.S.C.  §706(7)(B)  (Supp.  V  1981)  covers 
"any  person  who  (i)  has  a  physical  or  mental 
impairment  which  substantially  limits  one  or 
more  of  such  person's  major  life  activities"  (em- 
phasis added). 


12 


or  6.2  million  people,  that  is  the  national 
population  represented  by  the  SSA  sec- 
ondary work  limitations.48  As  a  result, 
SSA  statistics  permit  an  estimate  that 
roughly  12  percent  of  all  adults  of  work- 
ing age  have  disabilities  that  significant- 
ly limit  their  ability  to  work. 

The  1980  U.S.  Census  estimated  that 
8.6  percent  of  noninstitutionalized  per- 
sons between  16  and  64  years  of  age  have 
a  work  disability.49  This  provides  us  with 
a  range  of  8.6  percent  to  12  percent  for 
this  age  group. 

Some  authorities  have  estimated  that 
between  7  and  8  million  children  from 
ages  3  to  21  are  handicapped.50  For 
school  year  1980-81,  the  Department  of 
Education  reported  that  4,177,689  chil- 
dren and  youths  ages  3  to  21  were 
receiving  special  education  services.51 
Applying  these  estimates  to  census  data, 
the  proportion  of  school-aged  children 
with  handicaps  ranges  from  5.7  to  9.4 

48  SSA  Chart  book,  chart  1. 

49  Of  144,560,822  noninstitutionalized  persons  16 
to  64  years  of  age,  12,402,995  were  estimated  to 
have  a  work  disability.  U.S.  Census  1980,  p.  14. 

50  See  Bowe,  Handicapping  America,  pp.  16-17; 
Temple  Developmental  Disabilities  Center,  Man- 
power Projections  for  Developmental  Disabilities 
in  the  1980s  (Philadelphia:  Temple  University, 
1974),  p.  80;  20  U.S.C.  §1400(b)  (Supp.  IV  1980).  * 

51  U.S.,  Department  of  Education,  Special  Edu- 
cation Programs,  Fourth  Annual  Report  to 
Congress  on  the  Implementation  of  Public  Law 
94-142:  The  Education  for  All  Handicapped 
Children  Act  (1982),  p.  3  (hereafter  cited  as 
Fourth  Annual  Report  to  Congress  on  the  Impli- 
cations of  Public  Law  94-142). 

52  These  figures  are  very  gross  estimates,  in  part 
because  the  figures  for  the  3  to  21  age  group  must 
be  compared  with  census  figures  for  the  0  to  19 
age  group. 

53  OCR  projected  that  3,635,064  children  require 
special  education.  U.S.,  Department  of  Educa- 
tion, 1980  Elementary  and  Secondary  Schools 
Civil  Rights  Survey:  National  Summaries,    by 


percent.52  The  Department  of  Education, 
Office  for  Civil  Rights  (OCR),  estimates 
that  9.1  percent  of  the  total  elementary 
and  secondary  enrollment  require  spe- 
cial education.53  Although  correlation 
between  census  data  and  the  other  stud- 
ies mentioned  is  problematic,  the  best 
available  estimates  are  those  that  put 
the  figure  somewhere  between  5.7  and 
9.4  percent. 

The  estimates  of  handicapped  and  dis- 
abled persons  over  the  age  of  65  are  even 
less  precise  than  those  for  the  rest  of  the 
population.  According  to  the  White 
House  Conference  on  Handicapped  Indi- 
viduals, approximately  35  percent  of  the 
elderly  are  handicapped.54  Quoting  a 
NCHS  study,  the  1981  White  House 
Conference  on  Aging  noted  that  al- 
though 80  percent  of  the  elderly  reported 
some  type  of  chronic  condition,  only  20 
percent  reported  some  limitation  in  the 
amount  and  kind  of  usual  activity.55 

DBS  Corporation  for  the  Office  for  Civil  Rights 
(1982),  table  1.  Based  on  the  1970  census  figures, 
James  Kakalik  estimated  that  11.4  percent  of  the 
population  to  age  21  were  handicapped.  Gary  D. 
Brewer  and  James  S.  Kakalik,  Handicapped 
Children,  Strategies  for  Improving  Services  (New 
York:  McGraw-Hill,  1979),  pp.  78-9.  This  figure  is 
probably  an  overestimate.  See  The  Unexpected 
Minority,  Children  in  America,/?.  5  and  n.  11,  p. 
423. 

54  U.S.,  Department  of  Health,  Education,  and 
Welfare,  Office  of  Human  Development,  Special 
Concerns,  The  White  House  Conference  on  Hand- 
icapped Individuals  (1977),  p.  110.  The  1981 
White  House  Conference  on  Aging,  Chartbook  on 
Aging  in  America  (Washington,  D.C.:  1981),  p.  80. 

55  By  extrapolating  from  Social  Security  Admin- 
istration figures  for  the  55  to  64  age  group,  it  is 
fairly  certain  that  at  least  25  percent  of  those 
over  65  have  severe  disabilities  that  render  them 
unable  to  work  at  all  or  to  work  regularly.  The 
SSA  estimates  that  25  percent  of  the  persons 
aged  55  to  64  have  disabilities  of  these  types.  It  is 
reasonable   to  assume   that  the   proportion   of 


13 


Using  the  ranges  adopted  for  the  dif- 
ferent age  groups56  in  conjunction  with 
1980  population  data,  it  can  be  estimated 
that  handicapped  persons  represent  be- 
tween 9  percent  and  13.7  percent  of  the 
population.57  These  figures  are  by  no 
means  certain,  but  they  are  the  most 
reliable  available  at  the  present  time.58 

Beyond  providing  general  estimates  of 
the  overall  prevalence  of  handicaps, 
available  statistical  information  has  oth- 
er valuable  uses.  In  spite  of  methodologi- 
cal limitations  and  variations  that  some- 
times make  data  from  different  sources 
difficult  to  combine,  many  studies  are 
scrupulously  performed  and  draw  valid 
and  statistically  supported  conclusions 
within  their  specifically  defined  area  of 
inquiry.  Studies  of  the  numbers  of  people 
in  mental  health  and  mental  retardation 
facilities,  for  example,  or  of  handicapped 
children  receiving  special  education,  or 
of  the  number  of  handicapped  workers 
employed  by  Federal  agencies,  can  all  be 
performed  responsibly  and  accurately.59 
There  are  also  some  useful  data  illustrat- 
ing the  distribution  of  various  types  of 
impairments.  Available  data  are  particu- 
larly useful  for  suggesting  correlations 
between  handicaps  and  other  sociological 
factors,  such  as  age,  race,  marital  status, 
and    military    service.    Problems    with 

individuals  with  such  disabilities  does  not  dimin- 
ish after  the  age  of  64.  SSA  Chartbook,  chart  3. 

56  See  app.  C,  table  1,  of  this  monograph. 

57  See  app.  C,  table  2,  of  this  monograph. 

58  Some  have  estimated  that  there  are  36  million 
disabled  Americans,  while  others  have  put  the 
figure  closer  to  50  million.  These  figures  repre- 
sent 16  percent  and  22.1  percent,  respectively,  of 
the  total  population  of  the  United  States.  See 
Handicapping  America,  p.  17.  See  also  "Uncer- 
tainty in  Figures,"  New  York  Times,  Feb.  13, 
1977,  sec.  4,  p.  8,  col.  4. 

59  See  chap.  2  in  the  section  entitled  "Extent  of 
Handicap  Discrimination." 


methodology  employed  in  certain  studies 
as  discussed  above  do  not  generally  affect 
the  internal  validity  of  such  studies  in 
identifying  important  characteristics  of 
the  handicapped  population. 

Age 

The  chance  of  being  disabled  increases 
with  age.  According  to  one  study,  adults 
between  the  ages  of  55  and  64  are  3  times 
more  likely  than  those  between  35  and 
44  to  have  severe  or  occupational  disabil- 
ities and  10  times  more  likely  than  those 
between  18  and  34  to  be  severely  dis- 
abled.60 

Persons  65  years  of  age  and  older 
reported  at  least  two  to  three  times  as 
many  physical  impairments,  except  for 
speech  and  orthopedic  impairments  of 
the  back  or  spine,  than  the  average  for 
all  age  groups.  Older  people  reported 
visual  impairments  four  times  greater 
and  hearing  impairments  five  times 
greater  than  the  average  for  all  age 
groups.61 

Race 

Some  minority  groups  are  more  likely 
than  whites  to  have  handicaps.  Accord- 
ing to  one  study,  13  percent  of  the  black 
population  and  13  percent  of  the  Hispan- 
ic population  reported  severe  disabilities, 

60  SSA  Chartbook,  chart  3.  Another  study  found 
that  between  the  ages  of  35  and  44,  10.9  percent 
of  the  population  was  disabled  while  between  the 
ages  of  55  and  64,  29.5  percent  of  the  population 
was  disabled.  U.S.,  Department  of  Commerce, 
Bureau  of  the  Census,  1976  Survey  of  Income  and 
Education  (hereafter  referred  to  as  SIE  Study), 
as  reported  in  Congressional  Research  Service, 
Digest  of  Data  on  Persons  with  Disabilities  by 
Rehabilitation  Group,  Inc.  (Washington,  D.C.: 
U.S.  Government  Printing  Office,  1979),  p.  17 
(hereafter  referred  to  as  Digest). 

61  Prevalence  of  Selected  Impairments,  pp.  4-5. 


14 


while  8  percent  of  the  white  population 
and  6  percent  of  the  members  of  other 
races  reported  they  were  unable  to  work 
at  all  or  unable  to  work  regularly  due  to 
a  disability.62  Another  study  found  that 
19.4  percent  of  the  blacks  and  12.6  per- 
cent of  the  whites  reported  a  work  disa- 
bility.63 

Although  less  than  20  percent  of  the 
sample  population  in  another  study  was 
nonwhite,  nonwhites  reported  about  50 
percent  of  the  physical  impairments  in  4 
of  10  categories.  In  all  10  categories, 
nonwhites  were  at  least  35  percent  of  the 
impaired  group,  and  in  7  categories,  they 
were  at  least  40  percent.64 

Marital  Status 

Studies  suggest  that  disabled  people 
are  less  likely  than  nondisabled  people  to 
get  married  and  are  more  likely  to  be 
divorced  or  separated.65  While  68  per- 
cent of  the  nondisabled  population  are 
married,  only  about  63  percent  of  severe- 
ly disabled  persons  are  married.66  Se- 
verely disabled  persons  are  about  twice 
as  likely  as  nondisabled  persons  to  be 
divorced  or  separated.67 

62  SSA  Chartbook,  chart  4. 

63  See  Digest,  pp.  16-17. 

64  Prevalence  of  Selected  Impairments,  pp.  22-34. 

65  Barbara  Wolfe,  "How  the  Disabled  Fare  in  the 
Labor  Market,"  Monthly  Labor  Review,  Septem- 
ber 1980,  pp.  49,  51;  Richard  V.  Burkhauser  and 
Robert  H.  Haveman,  Disability  and  Work  (Balti- 
more: Johns  Hopkins  Univ.  Press,  1982),  p.  11 
(hereafter  cited  as  Disability  and  Work). 

66  Disability  and  Work,  p.  11. 
87   SSA  Chartbook,  chart  6. 

68  U.S.,  Veterans  Administration,  Office  of  Re- 
ports and  Statistics,  Disability  Compensation 
Data  (October  1981). 

69  These  include  arthritis  or  rheumatism,  trou- 
ble with  back  or  spine,  missing  legs  or  feet, 
missing  arms  or  hands,  and  chronic  stiffness. 
SSA  Chartbook,  chart  11. 

70  These  include  heart  trouble,  stroke,  and  other 
arterial -vascular  problems.  Ibid. 


Military  Service 

In  1981,  according  to  the  Veterans 
Administration,  2,279,064  veterans  were 
receiving  service-connected  disability 
compensation.  Approximately  387,000  of 
these  had  disabilities  rated  at  60  percent 
or  more,  some  619,000  had  disability 
ratings  between  30  and  60  percent,  and 
approximately  1,270,000  had  disabilities 
rated  at  less  than  30  percent.68 

Types  of  Impairments 

According  to  SSA  figures,  65  percent  of 
both  severely  and  partially  disabled  per- 
sons reported  musculoskeletal  condi- 
tions.69 Next  most  often  reported  by 
severely  disabled  persons  were  cardio- 
vascular problems,70  followed  by  mental 
conditions,71  digestive  conditions,72  and 
respiratory  conditions.73  Another  study 
found  that  the  most  disabling  conditions 
were  musculoskeletal,  circulatory,  hear- 
ing, emotional,  digestive,  respiratory,  vi- 
sual, and  neurological.74 

Of  the  approximately  9.5  million  per- 
sons regarded  as  having  developmental 
disabilities,  according  to  another  study, 
approximately  60  percent  are  mentally 

71  These  include  mental  illness,  mental  retarda- 
tion, alcohol  or  drug  problems,  and  chronic 
nervous  problems.  Ibid. 

72  These  include  gall  bladder  or  liver  trouble, 
stomach  ulcer,  chronic  stomach  trouble,  and  a 
hernia  or  rupture.  Ibid. 

73  These  include  tuberculosis,  chronic  bronchitis, 
emphysema,  chronic  lung  trouble,  asthma,  and 
respiratory  allergies.  Ibid. 

74  California  Department  of  Rehabilitation,  Ex- 
ecutive Summary  for  the  California  Disability 
Survey,  prepared  by  J.  Merrill  Shanks,  Survey 
Research  Center,  University  of  California,  Berke- 
ley, and  Howard  E.  Freeman,  Institute  for  Social 
Science  Research,  University  of  California,  Los 
Angeles  (Sacramento,  California,  1980),  table  E5- 
3. 


15 


retarded,  25  percent  have  epilepsy,  10 
percent  have  cerebral  palsy,  and  just 
under  1  percent  are  autistic.75 

In  1982  the  Department  of  Education 
reported  that  the  greatest  numbers  of 
children  and  youth  participating  in  spe- 
cial education  programs  exhibited  speech 
impediments,  learning  disabilities,  men- 
tal retardation,  or  emotional  distur- 
bance.76 

The  foregoing  culls  from  existing  data 
an  overview  of  some  statistical  facts 
about   handicapped    persons.    Although 

75    EMC  Institute,  Program  Issue  Review:  Charac- 
teristics of  the  Developmentally  Disabled  (devel- 
oped under  contract  to  HEW,  Office  of  Human 
Development).  As  to  the  sources  of  such  develop- 
mental disabilities  data,  a  report  making  use  of 
them  has  noted: 
The  EMC  Institute  prepared  these  data  from 
information  supplied  by  the  fiscal  year  1978 
state  developmental  disability  plans  as  re- 
quired by  P.L.  91-517,  as  amended  by  P.L. 
94-103,  and  by  the  Developmental  Disabili- 
ties Office  of  the  Office  of  Human  Develop- 
ment of  the  Department  of  Health,  Educa- 
tion, and  Welfare.  It  is  difficult  to  estimate 
the  errors  in  these  data.  There  are  several 
reasons  for  this:  (1)  not  all  of  the  54  State 
developmental  disabilities  plans  included  all 
the  population  data  specified  by  the  guide- 
lines; (2)  the  year  for  which  the  developmen- 
tally disabled  population  was  projected  var- 
ied among  the  individual  states  from  2980  to 


this  information  provides  a  general  feel 
for  the  size  and  makeup  of  the  handi- 
capped population,  its  imprecision  un- 
derscores the  need  for  more  reliable, 
standardized,  and  comprehensive  data. 
Better  statistical  information  would 
greatly  enhance  the  ability  to  plan  and 
deliver  services  to  handicapped  persons, 
to  monitor  the  status  and  treatment  of 
handicapped  persons,  and  to  develop 
legislative  and  administrative  initiatives 
and  appropriate  remedial  programs. 

1985;  (3)  the  definition  of  "substantial  handi- 
cap" varies  widely  among  individual  states, 
and;  (4)  the  accuracy  of  state  estimates 
varies,  because  some  states  base  their  esti- 
mates on  special  survey  data,  and  others  use 
prevalence  data  from  national  organizations. 
There  is  no  way  to  tell  what  methodology 
was  used  to  make  the  estimates. 

Digest,  p.  12. 

76  Fourth  Annual  Report  to  Congress  on  the 
Implementation  of  Public  Law  94-142  p.  3.  The 
breakdown  by  impairments  is  as  follows:  learn- 
ing disabled  (1,468,014);  speech  impaired 
(1,170,484);  mentally  retarded  (844,180);  emotion- 
ally disturbed  (348,954);  other  health  impaired 
(98,653);  deaf  and  hard  of  hearing  (81,363);  multi- 
handicapped  (70,460);  orthopedically  impaired; 
(59,663)  visually  handicapped  (33,005);  deaf  and 
blind  (2,913). 


16 


Chapter  2 

Discrimination  Against  Handicapped  People 


Most  people  do  not  harbor  conscious 
prejudices  against  handicapped  people  or 
even  realize  that  such  prejudice  is  a 
serious  problem  in  American  society. 
Many  perceive  handicapped  people's  dis- 
advantaged social  and  economic  status  as 
resulting  from  innate  limitations  caused 
by  handicaps.  Authorities  from  every 
branch  of  government  have  concluded, 
however,  that  prejudice  and  discrimina- 
tion are  major  causes  of  the  disadvan- 
tages confronting  handicapped  people. 

This  chapter  focuses  on  how  handi- 
capped people  fare  in  society  and  the 
ways  society,  instead  of  accommodating, 
frequently  misconstrues,  overreacts  to, 
or  ignores  differences  in  individual  men- 
tal and  physical  abilities.  The  chapter 
traces  the  historical  isolation  of  handi- 


1  118  Cong.  Rec.  3320-21  (Feb.  9,  1972)  (state- 
ment of  Sen.  Williams). 

2  Frank  G.  Bowe,  statement,  Civil  Rights  Issues 
of  Handicapped  Americans:  Public  Policy  Impli- 
cations, a  consultation  sponsored  by  the  U.S. 
Commission  on  Civil  Rights,  Washington,  D.C., 
May  13-14,  1980,  p.  10  (hereafter  cited  as  Consul- 
tation). 

3  Bruce  Vodicka,  "The  Forgotten  Minority:  The 
Physically  Disabled  and  Improving  Their  Physi- 
cal Environment,"  Chi.-Kent  L.  Rev.,  vol.  48 
(1971),  p.  215. 


capped  people,  examines  various  types  of 
prejudice  against  them,  and  describes 
the  patterns,  practices,  and  forms  of 
discrimination  on  the  basis  of  handicap. 

Historical  Background 

In  recent  years,  some  authorities  have 
called  handicapped  persons  "a  hidden 
population.  .  .unknown  to  the  communi- 
ties and  individuals  around  them,"1 
"unfamiliar  to  many  Ameri- 
cans;. .  .strangers  in  a  strange  land,"2 
"a  forgotten  minority,"3  and  "social 
outcasts."4  Their  isolated  status  is  not  a 
new  development,  however.  Recorded 
history  documents  many  examples  of 
segregation  and  persecution  by  various 
societies,  including  our  own,  of  people 

4  Kent  Hull,  The  Rights  of  Physically  Handi- 
capped People  (New  York:  Avon  Books,  1979),  p. 
29. 


17 


who  differed  from  what  was  considered 
"normal."5 

When  Europeans  settled  colonial 
America,  they  devoted  their  energies 
primarily  to  survival  and  placed  a  premi- 
um on  physical  stamina,  hard  work,  and 
material  success.  Incapacity  and  depen- 
dency were  undesirable  in  such  an  envi- 
ronment.6 Laws  in  the  Thirteen  Colonies 
excluded  settlers  who  could  not  demon- 
strate an  ability  to  support  themselves 
independently.  Immigration  policy  for- 
bade people  with  physical,  mental,  or 
emotional  disabilities  to  enter  the  coun- 
try.7 It  was  the  family's  responsibility  to 
care  for  any  members  who  were  born 
with  handicaps  or  became  handicapped 
through  illness,  injury,  or  other  causes.8 
Fear,  shame,  and  lack  of  understanding 
led  some  families  to  hide  or  disown  their 
handicapped  members  or  allow  them  to 
die.9 

Handicapped  people  without  families 
and  those  whose  families  were  unable  or 
unwilling  to  support  them  were  "farmed 
out"  to  stay  with  people  who  received 
public    assistance    for   providing   room, 

5  Instances  of  ridicule,  torture,  imprisonment, 
and  execution  of  handicapped  people  throughout 
history  are  not  uncommon,  while  societal  prac- 
tices of  isolation  and  segregation  have  been  the 
rule.  Frank  Bowe,  Handicapping  America  (New 
York:  Harper  &  Row,  1978),  pp.  3-8;  R.C.  Scheer- 
enberger,  A  History  of  Mental  Retardation  (Balti- 
more: Brookes  Publishing  Co.,  1983),  pp.  3-20,  31- 
47;  Jacobus  ten  Broek  and  Floyd  W.  Matson, 
"The  Disabled  and  the  Law  of  Welfare,"  Cal.  L. 
Rev.,  vol.  54  (1966),  pp.  809,  811;  Marcia  Burgdorf 
and  Robert  Burgdorf,  Jr.,  "A  History  of  Unequal 
Treatment,"  Santa  Clara  Lawyer,  vol.  15  (1975), 
pp.  861-91  (hereafter  cited  as  "History  of  Une- 
qual Treatment");  Wolf  Wolfensberger,  "The 
Origin  of  our  Institutional  Models,"  in  Changing 
Patterns  in  Residential  Services  for  the  Mentally 
Retarded,  ed.  Robert  B.  Kugel  and  Wolf  Wolfens- 
berger (Washington,  D.C.:  President's  Committee 


board,  and  care.10  Placement  was  usual- 
ly based  on  an  "inverse  auction"  in 
which  whoever  made  the  lowest  bid 
received  the  contracts  for  providing  the 
care.  Such  a  system  continued  into  the 
latter  half  of  the  19th  century,  when 
public  concern  over  abuses — including 
recorded  instances  where  care  providers 
collected  their  fees  and  then  locked  their 
charges  in  the  attic  to  starve  or  freeze  to 
death — led  to  reform.11 

Some  authorities  have  suggested  that 
societal  perceptions  of  people  with  handi- 
caps as  dependent  and  useless  may  have 
influenced  those  who  survived  to  refrain 
from  even  attempting  to  become  self- 
reliant.12  Nonetheless,  even  in  colonial 
times,  some  handicapped  people 
achieved  success  and  earned  the  respect 
of  their  communities.  Early  examples 
include  Peter  Stuyvesant,  the  Dutch  di- 
rector-general of  New  Amsterdam,  and 
Gouverneur  Morris,  codrafter  of  the 
American  Constitution  and  later  a  U.S. 
Senator  and  diplomat,  both  of  whom  had 
leg  amputations.13 

on  Mental  Retardation,  1969)  pp.  65-66;  Frances 
Koestler,  The  Unseen  Minority  (New  York:  David 
McKay,  1976),  pp.  1-12. 

6  President's  Committee  on  Employment  of  the 
Handicapped,  "Disabled  Americans:  A  History," 
Performance,  vol.  27,  nos.  5,  6,  7  (November- 
December  1976,  January  1977),  pp.  1-2  (hereafter 
cited  as  "Disabled  Americans:  A  History"). 

7  Bowe  statement,  Consultation,  p.  9. 

8  "Disabled  Americans:  A  History,"  p.  3. 

9  Bowe  statement,  Consultation,  p.  9. 

10  "Disabled  Americans:  A  History,"  pp.  3-5. 

11  Lloyd  Burton,  "Federal  Government  Assis- 
tance for  Disabled  Persons:  Law  and  Policy  in 
Uncertain  Transition,"  in  Law  Reform  in  Disa- 
bility Rights,  vol.  2  (Berkeley:  Disability  Rights 
Education  and  Defense  Fund,  1981),  p.  B-5. 

12  Bowe  statement,  Consultation,  p.  9. 

13  "Disabled  Americans:  A  History,"  pp.  10-12. 


18 


Based  partly  on  State  legislative  re- 
ports criticizing  prior  approaches  as  inef- 
ficient, in  the  early  1820s  public  pro- 
grams shifted  to  more  organized,  institu- 
tional care  for  indigent  and  handicapped 
people.14  Although  some  facilities  pro- 
vided care  for  people  with  particular 
types  of  handicaps,15  the  typical  ap- 
proach that  emerged  was  to  confine 
handicapped  people  in  almshouses  or 
poorhouses,  along  with  juvenile  delin- 
quents, prostitutes,  elderly  people,  and 
poor  people.16  Most  of  these  facilities 
were  merely  custodial,  and  many  were 
unsanitary  and  overcrowded.17 

Concern  over  the  inadequacies  of  the 
local  almshouse  system  prompted  re- 
formers like  Dorothea  Dix  to  push  for 
State  supervision  of  institutional  facili- 
ties and  for  more  specialized  care.18  As  a 
result,  in  the  1850s,  State  facilities  for 
various  groups  of  handicapped  people 
proliferated  amid  high  hopes  that  train- 
ing and  education  would  allow  people  to 
leave  the  institutions  and  live  in  their 
own  communities.19  Although  these  pro- 
grams apparently  achieved  some  success, 
they  were  largely  replaced  between  1870 

14  Ibid.,  p.  19. 

15  In  1773  the  Eastern  State  Hospital  at  Wil- 
liamsburg, Virginia,  was  founded  especially  to 
treat  mental  illness.  The  Massachusetts  Asylum 
for  the  Blind  (later  the  Perkins  Institute)  opened 
in  1832.  The  first  American  Asylum  for  the  Deaf 
was  started  in  Hartford,  Connecticut,  in  1817. 
The  first  private  school  in  America  for  educating 
severely  mentally  retarded  children  was  created 
in  1848.  Ibid.,  pp.  20-28. 

16  Ten  Broek  and  Matson,  "The  Disabled  and 
The  Law  of  Welfare,"  p.  811;  "Disabled  Ameri- 
cans: A  History,"  p.  20.  Some  States  already  had 
almshouses,  but  a  dramatic  increase  in  their 
numbers  occurred  in  the  1820s  and  1830s.  "Dis- 
abled Americans:  A  History,"  pp.  5, 19-20. 

17  Bowe  statement,  Consultation,  p.  9;  "Disabled 
Americans:  A  History,"  p.  20. 


and  1890  by  facilities  operating  on  a  new 
model  focused  on  protecting  handicapped 
people  from  society.  This  philosophy  em- 
phasized "benevolent  shelter"  and  re- 
sulted in  large  institutions  housing  great 
numbers  of  disabled  people  far  from 
population  centers.  These  programs  gen- 
erally provided  no  training  that  might 
enable  handicapped  residents  to  return 
to  their  communities.  Some  residents 
were  taught  skills  such  as  farming,  but 
only  to  help  defray  institutional  costs.20 
Ironically,  the  protective  isolation 
model,  premised  upon  a  belief  that  hand- 
icapped persons  needed  to  be  protected 
from  the  hardships  incident  to  normal 
society,  was  replaced  in  the  late  1800s 
and  early  1900s  by  a  growing  sentiment 
that  society  needed  protection  from 
handicapped  people.21  The  Social  Dar- 
winism of  the  late  19th  century  spawned 
a  eugenics  movement,  which  peaked  in 
the  United  States  in  the  1920s.  This 
movement  was  based  on  the  notion  that 
mental  and  physical  disabilities  were  the 
underlying  source  of  nearly  all  social 
problems  and  were  occurring  with  ever- 

18  "Disabled  Americans:  A  History,"  p.  20.  Dix 
also  labored  unsuccessfully  for  a  Federal  act 
establishing  land  grants  for  asylums  to  provide 
care  for  handicapped  people,  at  a  time  when  the 
Federal  Government  was  providing  many  thou- 
sands of  acres  of  Federal  land  to  States  for 
various  public  purposes.  When  Congress  finally 
passed  such  a  measure  in  1854,  President  Frank- 
lin Pierce  vetoed  it  on  constitutional  grounds  as 
an  attempt  to  make  "the  Federal  Government 
the  great  almoner  of  public  charity  throughout 
the  United  States."  Ibid.,  pp.  21-22;  Burton, 
"Federal  Government  Assistance  for  Disabled 
Persons,"  p.  B-4. 

19  Wolfensberger,  "The  Origin  and  Nature  of 
Our  Institutional  Models,"  pp.  89-92. 

20  Ibid.,  pp.  94-100. 

21  Ibid.,  pp.  100-105. 


19 


increasing  frequency  due  to  reproduction 
by  unfit  persons.22  Some  observers  saw 
the  spreading  of  handicapping  conditions 
through  heredity  as  the  single  most 
serious  problem  facing  America.23  Hand- 
icapped individuals  were  frequently  re- 
ferred to  as  "mere  animals,"  "sub-hu- 
man creatures,"  and  "waste  products" 
who  were  draining  the  economy  and 
producing  only  "pauperism,  degeneracy, 
and  crime."24 

To  isolate  handicapped  people,25  some 
professionals  advocated  institutionaliza- 
tion for  even  minor  disabling  conditions. 
The  costs  of  maintaining  the  institutions, 
however,  soon  became  burdensome  for 
many  communities.  Reducing  per  capita 
costs  allowed  institutions  to  admit  more 
people  on  a  given  budget.26  These  econo- 
mies of  scale  fostered  large,  understaffed 
institutions  often  providing  minimal  cus- 
todial services  to  residents.27 


22  See  Robert  L.  Burgdorf,  Jr.,  and  Marcia 
Pearce  Burgdorf,  "The  Wicked  Witch  Is  Almost 
Dead:  Buck  v.  Bell  and  the  Sterilization  of 
Handicapped  Persons,"  Temp  L.  Q.,  vol.  50,  no.  4 
(November  1977),  pp.  997-1000  and  authorities 
cited  therein  (hereafter  cited  as  "Wicked  Witch: 
Sterilization  of  Handicapped  Persons"). 

23  Wolfensberger,  "The  Origin  and  Nature  of 
Our  Institutional  Models,"  pp.  102-05;  "Wicked 
Witch:  Sterilization  of  Handicapped  Persons,"  p. 
998.  An  article  calling  for  a  sterilization  statute 
in  Kentucky,  for  example,  issued  the  following 
warning: 

Since  time  immemorial,  the  criminal  and  de- 
fective have  been  the  "cancer  of  society." 
Strong,  intelligent,  useful  families  are  be- 
coming smaller  and  smaller;  while  irrespon- 
sible, diseased,  defective  families  are  becom- 
ing larger.  The  result  can  only  be  race 
degeneration.  To  prevent  this  race  suicide  we 
must  prevent  the  socially  inadequate  per- 
sons from  propagating  their  kind,  i.e.,  the 
feebleminded,  epileptic,  insane,  criminal, 
diseased,  and  others. 

Note,  "A  Sterilization  Statute  for  Kentucky,"  Ky. 
L.J.,  vol.  23  (1934),  p.  168. 


By  the  end  of  the  1920s,  scientists  had 
discredited  many  of  the  underpinnings  of 
eugenics,  and  the  belief  that  handi- 
capped people  were  a  social  menace 
waned.  Experts  challenged  the  eugeni- 
cists'  overemphasis  on  heredity  as  the 
cause  of  disabilities  and  refuted  theories 
that  the  human  race  was  deteriorating 
genetically.28  This  undercut  the  primary 
rationale  for  segregating  handicapped 
people  from  the  rest  of  society,  but  the 
large  State  residential  institutions  had 
established  a  momentum  of  their  own.29 
Institutionalization  had  become  Ameri- 
can society's  automatic  response  to  the 
question  of  how  to  deal  with  the  handi- 
capped population: 


[W]hether  young  or  old;  whether 
borderline  or  profoundly  retarded; 
whether  physically  handicapped  or 
physically  sound;  whether  deaf  or 

24  Wolfensberger,  "The  Origin  and  Nature  of 
Our  Institutional  Models,"  pp.  102, 106-07. 

25  Eugenicists  advocated  several  strategies  for 
dealing  with  the  propogation  of  handicapped 
people.  These  included  prohibitions  on  marriage 
and  sexual  intercourse,  compulsory  sterilization, 
segregation  from  the  community  and  from  the 
opposite  sex,  and  euthanasia.  "Wicked  Witch: 
Sterilization  of  Handicapped  Persons,"  pp.  998- 
99.  Some  of  these  measures  were  difficult  to 
enact  or  enforce  or  were  struck  down  by  the 
courts  as  unconstitutional.  Ibid.,  pp.  1000-01. 

26  Wolfensberger,  "The  Origin  and  Nature  of 
Our  Institutional  Models,"  p.  118. 

27  Some  institutions  actually  competed  to  see 
which  could  reduce  costs  the  most,  with  little 
concern  for  the  welfare  of  residents  or  the  quality 
of  their  environment.  Ibid.,  p.  122.  "Farm  colo- 
nies" exploiting  the  labor  of  mentally  retarded 
residents  became  common.  Ibid.,  pp.  119-22. 

28  "Wicked  Witch:  Sterilization  of  Handicapped 
Persons,"  pp.  1007-08,  and  the  authorities  cited 
therein. 

29  Wolfensberger,  "The  Origin  and  Nature  of 
Our  Institutional  Models,"  pp.  129-31. 


20 


blind;  whether  rural  or  urban; 
whether  from  the  local  town  or  from 
500  miles  away;  whether  well-be- 
haved or  ill-behaved[,]  [w]e  took 
them  all,  by  the  thousands,  5,000  to 
6,000  in  some  institutions.  We  had 
all  the  answers  in  one  place,  using 
the  same  facilities,  the  same  person- 
nel, the  same  attitudes,  and  largely 
the  same  treatment.30 

Concern  for  disabled  First  World  War 
veterans  prompted  Congress  to  pass  leg- 
islation creating  "soldier  rehabilitation" 
programs  in  1918.31  In  1920  the  Fess- 
Kenyon  Act  created  a  vocational  rehabil- 
itation program  embracing  persons  "dis- 
abled in  industry  or  in  any  legitimate 
occupation."32  This  program  was  extend- 
ed periodically  and  became  permanent 
with  passage  of  the  Social  Security  Act  of 
1935.33  With  the  return  of  Second  World 
War  veterans,  the  range  of  rehabilitation 
services  available  under  the  act  was 
expanded  and  extended  to  mentally  dis- 
abled persons.34  Another  postwar  mea- 
sure, passed  in  1948,  prohibited  discrimi- 
nation based  on  physical  handicap  in 


United    States   Civil    Service   employ- 
ment.35 

In  the  last  10  years,  through  laws  such 
as  the  Education  for  All  Handicapped 
Children  Act36  and  the  Rehabilitation 
Act  of  1973,37  Congress  has  guaranteed 
basic  civil  rights  to  handicapped  people. 
Naturally,  these  laws  could  not  instanta- 
neously remedy  the  effects  that  years  of 
isolation  have  had  on  handicapped  peo- 
ple: 


Disabled  people  have  been  out  of  the 
mainstream  of  American  life  for  two 
hundred  years.  And  these  years 
have  seen  the  construction  of  mo- 
dern American  society — its  values, 
its  heritage,  its  cities,  its  transporta- 
tion and  communications  networks. 
So  that  now,  when  they  are  coming 
back  into  our  society,  the  barriers 
they  face  are  enormous.38 

Because  of  the  historical  isolation  of 
handicapped  people,  many  nonhandi- 
capped  people  tend  to  have  had  little 
contact  with  handicapped  people  and 
know  little  about  their  abilities  and 
disabilities.39  In  addition,  because  handi- 


30  Ibid.,  p.  143. 

31  Vocational  Rehabilitation  Act,  ch.  107,  40 
Stat.  617  (1918). 

32  Pub.  L.  No.  66-236,  41  Stat.  735  (1920). 

33  Pub.  L.  No.  74-271,  49  Stat.  620  (1935).  In  1936 
the  Randolph-Sheppard  Vending  Stand  Act  was 
passed,  authorizing  vending  facilities  in  public 
buildings  for  blind  people  to  sell  such  items  as 
newspapers  and  tobacco.  Pub.  L.  No.  74-732,  49 
Stat.  1559  (1936),  codified  as  amended  at  20 
U.S.C.  §§107-107f  (1976  and  Supp.  V  1981).  The 
Wagner-O'Day  Act  of  1938  created  an  obligation 
upon  the  Federal  Government  to  buy  products 
from  workshops  for  blind  people.  Pub.  L.  No.  75- 
739,  52  Stat.  1196  (1938),  codified  as  amended  at 
41  U.S.C,  §§46-48c  (1976  and  Supp.  IV  1980). 

M   Pub.  L.  No.  78-113,  57  Stat.  374  (1943). 


35  Act  of  June  10,  1948,  Pub.  L.  No.  80-617,  62 
Stat.  351. 

36  20  U.S.C.  §§1401-1461  (1976  and  Supp.  V 
1981);  chap.  3  in  the  section  entitled  "Education 
for  All  Handicapped  Children  Act." 

37  29  U.S.C.  §§701-794  (1976  and  Supp.  IV  1980); 
chap.  3  in  the  section  entitled  "Rehabilitation 
Act  of  1973." 

38  Bowe,  Handicapping  America,  p.  x. 

39  One  authority  has  observed: 

[DJisabled  individuals  are  unfamiliar  to  many 
Americans;  one  way  of  putting  it  is  to  say 
that  in  many  respects  disabled  persons  are 
strangers  in  a  strange  land.  Attitudes  of  the 
general  public  toward  disabled  individuals, 
accordingly,  are  quite  negative.  Disabilities 


21 


capped  people  have  been  out  of  sight, 
they  often  have  been  out  of  mind  when 
societal  planning  and  organization  have 
occurred. 


Prejudice  Toward  Handicapped 
People 

Prejudice  distorts  social  relationships 
by  overemphasizing  some  characteristic 
such  as  race,  gender,  age,  or  handicap.40 
Physical  and  mental  differences  among 
people  do  exist,  and  awareness  of  individ- 
ual differences  and  sensitivity  to  the 
actual  needs  and  specific  limitations  of 
handicapped  people  are  important  parts 
of  relating  to  them  in  an  appropriate  and 
positive  manner.  But  imputing  more 
difference  to  a  handicapped  person  than 
actually  exists  is  a  form  of  prejudice.41 

engender  fear  and  discomfort  in  many  "tem- 
porarily able-bodied"  individuals,  so  much  so 
that  the  average  American  finds  it  very 
difficult  to  see  beyond  the  disability  to  the 
abilities. 


Bowe  statement,  Consultation,  p.  10. 

40  For  an  analytic  framework  and  diagram  of 
the  concepts  of  prejudice  and  discrimination,  see 
Joe  R.  Feagin  and  Douglas  Lee  Eckberg,  "Dis- 
crimination: Motivation,  Action,  Effects,  and 
Context,"  Annual  Review  of  Sociology,  vol.  6 
(1980),  pp.  1-20.  The  authors  posit  that  the 
concept  of  discrimination  includes  the  following 
dimensions:  (a)  motivation,  (b)  discriminatory 
action,  (c)  effects,  (d)  the  relation  between  moti- 
vation and  action,  (e)  the  relation  between  action 
and  effects,  (f)  the  immediate  organizational 
context,  and  (g)  the  larger  societal  context.  Ibid., 
p.  2. 

41  Research  has  suggested  that  for  children  a 
visible  handicap  may  be  more  significant  than 
race  in  deterring  friendships.  Constantina  Safi- 
lios-Rothschild,  "Social  and  Psychological  Pa- 
rameters of  Friendship  and  Intimacy  for  Dis- 
abled People,"  in  Disabled  People  as  Second-Class 
Citizens,  ed.  Myron  G.  Eisenberg,  Cynthia  Grig- 
gins,  and  Richard  J.  Duval  (New  York:  Springer 
Publishing  Co.,  1982),  p.  43. 


Prejudice  toward  handicapped  people 
is  similar  in  some  ways  to  other  kinds  of 
prejudice  and  may  share  some  common 
sources,  such  as  the  urge  to  classify  and 
the  tendency  to  form  in-groups  and  out- 
groups.42  Some  authorities  have  suggest- 
ed that  various  types  of  prejudice  are 
connected  and  that  people  who  are  preju- 
diced in  one  area  tend  to  be  prejudiced  in 
other  areas.43  Another  common  aspect  of 
prejudice  is  disparity  of  power,  where 
people  fall  into  roles  based  on  assump- 
tions of  superiority  and  inferiority.44 

Sociological  and  psychological  studies 
of  attitudes  towards  handicapped  people 
are  neither  refined  nor  comprehensive. 
Although  no  two  persons'  attitudes  are 
exactly  alike,  the  professional  litera- 
ture45    discloses  some  common  strains 

42  See,  e.g.,  Myron  G.  Eisenberg,  "Disability  as 
Stigma,"  in  Disabled  People  as  Second-Class 
Citizens,  pp.  4-5;  John  S.  Hicks,  "Should  Every 
Bus  Kneel?"  in  Disabled  People  as  Second-Class 
Citizens,  pp.  22-24;  Karl  Menninger,  The  Vital 
Balance  (New  York:  Viking  Press,  1963),  pp.  9- 
34. 

43  For  an  overview  and  summary  of  such  studies, 
see  R.  William  English,  "Correlates  of  Stigma 
Towards  Physically  Disabled  Persons,"  in  Social 
and  Psychological  Aspects  of  Disability,  ed.  Jo- 
seph Stubbins  (Baltimore:  University  Park  Press, 
1977),  pp.  218-19.  See  also  Wolf  Wofensberger, 
The  Principle  of  Normalization  in  Human  Ser- 
vices (Toronto:  National  Institute  on  Mental 
Retardation,  1972),  p.  14;  T.W.  Adorno  and  oth- 
ers, The  Authoritarian  Personality  (New  York: 
W.W.  Norton  &  Co.,  1950);  Larry  D.  Baker, 
"Authoritarianism,  Attitudes  Toward  Blindness, 
and  Managers:  Implications  for  the  Employment 
of  Blind  Persons,"  The  New  Outlook  for  the 
Blind,  vol.  68,  no.  7  (September  1974),  pp.  308-14; 
Bowe,  Handicapping  America,  pp.  122-24. 

44  John  Gliedman  and  William  Roth,  The  Unex- 
pected Minority  (New  York:  Harcourt  Brace 
Jovanovich,  1980),  pp.  383-84;  Eisenberg,  "Disa- 
bility as  Stigma,"  p.  5.  Cf,  U.S.,  Commission  on 
Civil  Rights,  Racism  in  America  and  How  to 
Combat  It  (1970). 

45  See  the  studies  summarized  in  John  Schroe- 


22 


and  consistent  patterns  regarding  preju- 
dice based  on  handicap.  The  following 
summarizes  four  of  the  major  types. 

Discomfort 

Psychological  studies  indicate  that  in- 
teraction with  handicapped  people,  par- 
ticularly those  with  visible  handicaps, 
commonly  produces  feelings  of  discom- 
fort and  embarrassment  in  nonhandi- 
capped  people.46  Such  sentiments  occur 
especially  among  people  who  lack  the 
experience  to  know  what  limitations 
result  from  handicaps  and  what  types  of 
things  are  appropriate  to  say  or  do  in 
response.  "One  may  like  and  respect  a 
handicapped  person  and  still  stammer, 
overreact,  or  fall  mute  time  and  time 
again  because  one  doesn't  know  what  to 
do  next."47  These  reactions  also  involve 
issues  of  how  to  behave  toward  members 
of  less  advantaged  groups  without  unin- 
tentionally being  patronizing  or  false.48 
Uneasiness  may  also  reflect  deeper  fears. 
Psychologically,  handicaps  may  be  sym- 
bolic evidence  of  everyone's  vulnerability 
to  death,  disease,  and  injury,  which  may 
force  people  to  face  "unpleasant  truths 


del,  Attitudes  Toward  Persons  With  Disabilities: 
A  Compendium  of  Related  Literature  (Albertson, 
N.Y.:  Human  Resources  Center,  1979)  and  Jo- 
seph Stubbins,  ed.,  Social  and  Psychological 
Aspects  of  Disability  (Baltimore:  University  Park 
Press,  1977). 

46  Hull,  The  Rights  of  Physically  Handicapped 
People,  pp.  32-33,  41,  n.  8.  See  also,  Gliedman  and 
Roth,  The  Unexpected  Minority,  pp.  380-81;  Ei- 
senberg,  "Disability  as  Stigma,"  p.  9;  Amy  Jo 
Gittler,  "Fair  Employment  and  the  Handicapped: 
A  Legal  Perspective,"  DePaul  L.  Rev.,  vol.  27 
(1978),  p.  469;  Harlan  Hahn,  "Paternalism  and 
Public  Policy,"  Society,  vol.  20,  no.  3  (March- 
April  1983),  p.  44  (hereafter  cited  as  "Paternal- 
ism and  Public  Policy"). 

47  Gliedman  and  Roth,  The  Unexpected  Minori- 
ty, p.  380. 


about  [themselves]  or.  .  .the  harsh  reali- 
ties of  [their]  environment."49 

Whatever  the  cause,  handicapped  peo- 
ple encounter  the  reaction  of  aversion 
every  day.50  One  author  reported  that 
his  lawyer  was  reluctant  to  associate 
with  him  and  ill  at  ease  having  lunch 
with  him  in  the  course  of  a  personal 
injury  suit  over  the  accident  that  had 
caused  his  handicap.51  According  to 
another  writer,  who  is  paralyzed  from 
the  shoulders  down:  "I  have  been  served 
meals  in  separate  dining  areas  of  restau- 
rants since,  as  the  owners  were  quick  to 
point  out,  I  might  upset  the  other  cus- 
tomers and  lessen  their  enjoyment  of  the 
meal."52  More  frequent  than  such  clear- 
cut  situations,  however,  is  the  subtle  but 
recognizable  unease  that  commonly 
greets  the  handicapped  person  who  ven- 
tures out  into  the  world: 


Whether  the  handicap  is  overtly  and 
tactlessly  responded  to  as  such  or,  as 
is  more  commonly  the  case,  no  ex- 
plicit reference  is  made  to  it,  the 
underlying  condition  of  heightened, 
narrowed  awareness  causes  the  in- 
teraction to  be  articulated  too  exclu- 

48  Ibid. 

49  Constantina  Safilios-Rothschild,  "Prejudice 
Against  the  Disabled  and  Some  Means  to  Combat 
It,"  Social  and  Psychological  Aspects  of  Disabili- 
ty, p.  265. 

50  Leonard  Kriegel,  "Uncle  Tom  and  Tiny  Tim: 
Some  Reflections  on  the  Cripple  as  Negro," 
American  Scholar,  vol.  38  (1969),  p.  413.  "He  does 
not  even  possess  the  sense  of  being  actively  hated 
or  feared  by  society,  for  society  is  merely  made 
somewhat  uncomfortable  by  his  presence."  Ibid. 

51  Jack  Achtenberg,  "Crips'  Unite  to  Enforce 
Symbolic  Laws:  Legal  Aid  for  the  Disabled:  An 
Overview,"  San  Fern.  V.  L.  Rev.,  vol.  4,  no.  2 
(1975),  p.  178. 

52  Gittler,  "Fair  Employment  and  the  Handi- 
capped," p.  969,  n.  52. 


23 


sively  in  terms  of  it.  This.  .  .is  usu- 
ally accompanied  by  one  or  more  of 
the  familiar  signs  of  discomfort  and 
stickiness:  the  guarded  references, 
the  common  everyday  words  sudden- 
ly made  taboo,  the  fixed  stare  else- 
where, the  artificial  levity,  the  com- 
pulsive loquaciousness,  the  awkward 
solemnity.53 


Patronization  and  Pity 

Research  has  documented  that  non- 
handicapped  people  often  feel  and  act  on 
moral  obligations  to  help  handicapped 
people.54  Numerous  individuals  and  or- 
ganizations spend  time  and  money  in 
telethons,  benefit  sports  contests,  and 
other  charitable  events  to  support  di- 
verse research  efforts,  facilities,  and  ac- 
tivities making  real  and  important  con- 
tributions to  handicapped  people  and 
their  families.  Charitable  impulses,  how- 
ever, can  become  pity  or  patronization 
toward  the  intended  beneficiaries:55 


Usually,  this  form  of  pity  perception 
is  benevolent  and  is  accompanied  by 
compassion  and  acceptance,  al- 
though it  may  be  devoid  of  respect 


53  Fred  Davis,  "Deviance  Disavowal:  The  Man- 
agement of  Strained  Interaction  by  the  Visibly 
Handicapped,"  Social  Problems,  vol.  9  (1961),  p. 
123.  See  also,  "Paternalism  and  Public  Policy,"  p. 
44. 

54  Eisenberg,  "Disability  as  Stigma,"  p.  6. 

55  Wolfensberger,  The  Principle  of  Normaliza- 
tion in  Human  Services,  p.  20;  "Paternalism  and 
Public  Policy,"  p.  44.  There  appears  to  be  a 
consoling  effect  in  knowing  that  others  are  worse 
off  than  oneself.  According  to  the  ancient  Chi- 
nese adage,  "I  was  angered  for  I  had  no  shoes, 
then  I  met  a  man  who  had  no  feet."  Selwyn  G. 
Champion,  Racial  Proverbs:  A  Selection  of  the 
World's  Proverbs  Arranged  Linguistically  (Lon- 
don: George  Routledge  &  Sons,  1938),  p.  376. 

56  Wolfensberger,  The  Principle  of  Normaliza- 
tion in  Human  Services,  p.  20. 


for  the  deviant  person.  However, 
there  also  exists  another  variant  of 
the  pity  perception,  upheld  more  by 
a  sense  of  duty  than  compassion. 
Particularly  persons  possessing  a 
strongly  moralistic  conscience  but 
not  much  genuine  humanism  are 
apt  to  perceive  deviant  persons  as 
objects  of  sour  charity.56 

Charitable  acts  can  be  accompanied  by 
attitudes  denying  handicapped  people 
respect  or  dignity.  Some  critics  have 
questioned  the  motivation  of  well-inten- 
tioned programs  and  the  way  they  may 
reflect  and  affect  attitudes  about  handi- 
capped people,57  with  one  observer  char- 
acterizing oversolicitousness  toward 
handicapped  people  as  "benevolent  pa- 
ternalism."58 Another  has  argued  that 
at  their  root  such  attitudes  reflect  "a 
belief  that  such  poor,  blighted  creatures 
as  these  must  be  protected  from  the 
world,  instead  of  helped  to  become  part 
of  it."59 


57  Ruth-Ellen  Ross  and  I.  Robert  Freelander, 
Handicapped  People  in  Society:  A  Curriculum 
Guide  (Burlington,  Vt.:  Univ.  of  Vermont,  1977), 
p.  12;  Leonard  Kriegel,  "Claiming  the  Self:  The 
Cripple  as  American  Male,"  in  Disabled  People 
as  Second-Class  Citizens,  ed.  Myron  G.  Eisenberg, 
Cynthia  Griggins,  and  Richard  J.  Duval  (New 
York:  Springer  Publishing  Co.,  1982),  p.  58;  New 
York  Times,  Feb.  13, 1977,  p.  E-8. 

58  Hull,  The  Rights  of  Physically  Handicapped 
People,  p.  21. 

59  U.S.,  Department  of  Health,  Education,  and 
Welfare,  Social  and  Rehabilitation  Service,  Legal 
Rights  of  the  Disabled  and  Disadvantaged,  by 
Richard  C.  Allen  (Washington,  D.C.:  Government 
Printing  Office,  1969),  p.  49. 


24 


Stereotyping 

Frequently  the  label  of  handicapped 
conjures  up  an  image,  and  nonhan- 
dicapped  persons  often  relate  to  this 
stereotypic  image  more  readily  than 
to  the  flesh  and  blood  individuals 
with  whom  they  come  into  contact. 
The  stereotypes  can  take  a  number 
of  different  forms.  .  .  .Whatever  the 
particular  image,  these  caricatures 
of  human  beings  are  substituted  for 
the  real  thing.60 

Some  nonhandicapped  people  believe 
that  disabled  people  differ  from  others  in 
many  respects  beyond  their  specific  disa- 
bilities.61 Generalizing  from  an  impair- 
ment to  the  whole  person  has  been 
termed  the  "spread  effect."62  A  handicap 
frequently  short  circuits  the  normal  ex- 
change of  information  and  impressions 
of  another  person.  It  may  interject  false 
expectations  and  assumptions  about  who 
handicapped  people  are,  how  they  should 
behave,  and  how  to  interpret  their  con- 
duct: 


We  assign  a  wide  range  of  imperfec- 
tions to  them  based  on  the  original 
one  and  view  them  through  the  lens 
of  the  deviant  characteristic  rather 
than  as  a  holistic  collection  of  nu- 
merous attributes  with  various  de- 
grees of  importance  at  various  times 
and  under  various  conditions.63 


80  Robert  L.  Burgdorf,  Jr.,  The  Legal  Rights  of 
Handicapped  Persons  (Baltimore:  Brookes  Pub- 
lishing Co.,  p.  50  (hereafter  cited  as  Legal  Rights 
of  Handicapped  Persons);  see  also,  Hull,  The 
Rights  of  Physically  Handicapped  People,  pp.  29- 
30. 

81  Nettie  R.  Bartel  and  Samuel  L.  Guskin,  "A 
Handicap  as  a  Social  Phenomenon,"  in  Psycholo- 
gy of  Exceptional  Children  and  Youth,  ed.  Wil- 


Noted  psychologist  and  author,  Dr. 
Wolf  Wolfensberger  has  catalogued  and 
characterized  the  most  common  stereo- 
types assigned  to  handicapped  people. 
Noting  that  such  perceptions  derive  from 
prejudices  and  bear  little  relation  to 
reality,  Wolfensberger  has  chosen 
phrases  graphically  identifying  the  uns- 
tated feelings  behind  stereotypes  for 
handicapped  people:  (a)  the  Subhuman 
Organism,  (b)  the  Menace,  (c)  the  Un- 
speakable Object  of  Dread,  (c)  the  Object 
of  Pity,  (d)  the  Holy  Innocent,  (e)  the 
Diseased  Organism,  (f)  the  Object  of 
Ridicule,  and  (g)  the  Eternal  Child.64 
These  stereotypes,  or  combinations  and 
variations  thereof,  make  it  extremely 
difficult  for  someone  to  discover  a  handi- 
capped person's  actual  personality,  char- 
acteristics, needs,  and  abilities.  Handi- 
capped people  have  unusual  problems 
with  first  impressions,  establishing  com- 
mon grounds  for  communication,  and 
forming  relationships  because  they  must 
face  the  additional  burden  of  eliminating 
false  assumptions  of  who  and  what  they 
are. 

Stigmatization 

Perhaps  the  most  significant  attitude 
toward  handicaps  is  that  they  are  consid- 
ered extremely  negative  characteristics. 
"What  is  a  handicap  in  social  terms?  It  is 
an  imputation  of  difference  from  others; 

liam  M.  Cruickshank  (Englewood  Cliffs,  N.J.: 
Prentice-Hall,  1971),  p.  83. 

62  Beatrice  A.  Wright,  Physical  Disability:  A 
Psychological  Approach  (New  York:  Harper  & 
Row,  1960),  pp.  118-19. 

63  Eisenberg,  "Disability  as  Stigma,"  p.  6. 

64  Wolfensberger,  The  Principle  of  Normaliza- 
tion in  Human  Services,  pp.  16-24. 


25 


more  particularly,  imputation  of  an  un- 
desirable difference."65  To  the  fact  that  a 
handicapped  person  differs  from  the 
norm  physically  or  mentally,  people  of- 
ten add  a  value  judgment  that  such  a 
difference  is  a  big  and  very  negative  one. 
"A  handicapping  condition  is  frequently, 
albeit  illogically,  viewed  as  a  blamewor- 
thy characteristic  or  a  badge  of  disg- 
race."66 

The  professional  literature  is  full  of 
discussions  about  the  stigma  associated 
with  handicaps.67  There  is  also  evidence 
of  a  correlation  between  the  type  of 
disability  a  person  has  and  the  degree  of 
stigma  attached.68  In  a  classic  work  on 
the  subject  of  stigma,  Erving  Goffman 
describes  the  person  with  a  stigma  as 


65  Eliot  Freidson,  "Disability  as  Social  Devi- 
ance," Sociology  and  Rehabilitation,  ed.  Marvin 
B.  Sussman  (American  Sociological  Association, 
under  grant  of  U.S.  Dept.  of  Health,  Education, 
and  Welfare,  1965),  p.  72. 

66  The  Legal  Rights  of  Handicapped  Persons,  p. 
49.  One  author  has  gone  so  far  as  to  state  that 
being  labeled  as  having  a  handicap  like  mental 
retardation  is  "to  be  burdened  by  a  shattering 
stigma,.  .  .the  ultimate  horror."  Robert  B.  Edg- 
erton,  The  Cloak  of  Competence  (Berkeley:  Univ. 
of  California  Press,  1967),  pp.  205-06.  And  a 
Federal  court  has  noted  that  the  stigmatization 
accompanying  some  handicaps  can  be  likened  to 
a  "sentence  of  death."  Pennsylvania  Ass'n  for 
Retarded  Children  v.  Commonwealth  of  Pa.,  343 
F.  Supp.  279,  295  (E.D.  Pa.  1972). 

67  "Paternalism  and  Public  Policy,"  p.  44.  Some 
authorities  have  suggested  that  the  stigma  asso- 
ciated with  handicaps  may  be  drawn  from  bibli- 
cal references  that  seem  to  link  handicaps  with 
sin,  death,  demons,  and  punishment.  Eisenberg, 
"Disability  as  Stigma,"  p.  5;  Koestler,  The  Unseen 
Minority,  p.  3.  Other  researchers  suggest  that 
negative  attitudes  toward  handicapped  people 
result  from  an  "asthetic"  factor  reflecting  the 
high  value  our  society  places  on  physique,  athlet- 
ic prowess,  beauty,  and  intelligence.  English, 
"Correlates  of  Stigma  Toward  Physically  Dis- 
abled Persons,"  p.  218  and  the  studies  cited 
therein;  Bartel  and  Guskin,  "A  Handicap  as  a 


someone  thought  of  as  not  quite  human. 
The  stigmatized  person  is  one  who  "pos- 
sesses a  trait  which  makes  him  different 
from  normals.  He  possesses  a  stigma,  an 
undesired  differentness  which  separates 
him  from  the  rest  of  society."69  Accord- 
ing to  many  sociologists  and  educators, 
the  single  most  serious  problem  for 
handicapped  people  is  learning  to  avoid, 
deal  with,  or  manage  the  stigma  that 
confronts  them.70 

In  examining  the  severity  of  the  stig- 
ma of  some  handicaps,  observers  note 
that  by  definition  it  focuses  on  a  nega- 
tive— the  inability  or  absence  of  some- 
thing.71 The  negative  connotations  of  the 
concept  of  handicaps  may,  therefore,  be 
extremely  extensive: 

Social  Phenomenon,"  p.  79;  Jane  R.  Mercer, 
Labeling  the  Mentally  Retarded  (Berkeley:  Univ. 
of  California  Press,  1973),  pp.  6,  n.29;  Gliedman 
and  Roth,  The  Unexpected  Minority,  p.  44;  Edith 
Jacobson,  "The  'Exceptions':  An  Elaboration  of 
Freud's  Character  Study,"  app.  1  to  Gliedman 
and  Roth,  The  Unexpected  Minority,  p.  346; 
Wolfensberger,  The  Principle  of  Normalization 
in  Human  Services,  p.  14. 

68  One  study  established  a  ranking  of  types  of 
disabilities  in  the  following  order,  ranging  from 
the  least  to  the  most  stigmatizing:  ulcers,  arthri- 
tis, asthma,  diabetes,  heart  disease,  amputation, 
blindness,  deafness,  stroke,  cancer,  old  age,  para- 
plegia, epilepsy,  dwarfism,  cerebral  palsy,  hunch- 
back, tuberculosis,  criminal  record,  mental  retar- 
dation, alcoholism,  mental  illness.  John  L.  Trin- 
go,  "The  Hierarchy  of  Preference  Toward  Disa- 
bility Groups,"  Journal  of  Special  Education,  vol. 
4  (1970),  pp.  295-305. 

69  Erving  Goffman,  Stigma:  Notes  on  the  Man- 
agement of  Spoiled  Identity  (Englewood  Cliffs, 
N.J.:  Prentice-Hall,  1963),  p.  5. 

70  See,  e.g.,  Bartel  and  Guskin,  "A  Handicap  as  a 
Social  Phenomenon,"  p.  94;  Eisenberg,  "Disabili- 
ty as  Stigma,"  pp.  9-11. 

71  Gliedman  and  Roth,  The  Unexpected  Minori- 
ty, p.  23;  see  also  William  Roth,  "Handicap  as  a 
Social  Construct,"  Society,  vol.  20,  no.  3  (March- 
April  1983),  pp.  56-61. 


26 


The  full  consequences  of  this  stress 
upon  social  incapacity  are  apparent 
only  when  one  recognizes  that  the 
possession  of  an  exclusively  negative 
social  identity  (i.e.,  always  being 
considered  incapable  of  normal  func- 
tion) is  psychologically  and  socially 
synonymous  with  being  denied  any 
human  identity  whatever. 


(1)  there  are  more  than  eight  mil- 
lion handicapped  children  in  the 
United  States  today; 


(2)  the  special  educational  needs  of 
such  children  are  not  being  fully 
met; 


Far  from  being  a  response  to  an 
inflexible  fact  about  biology,  our 
perception  of  a  handicap  nearly  al- 
ways reflects  an  arbitrary,  uncon- 
scious decision  to  treat  normal  social 
function  and  the  possession  of  any 
handicap  as  mutually  exclusive  at- 
tributes.72 


(3)  more  than  half  of  the  handi- 
capped children  in  the  United  States 
do  not  receive  appropriate  educa- 
tional services  which  would  enable 
them  to  have  full  equality  of  oppor- 
tunity; 


Extent  of  Handicap 
Discrimination 

Despite  some  improvements,  the  treat- 
ment of  handicapped  individuals  re- 
mains discriminatory  in  many  critical 
areas. 

Education 

Education  is  the  crucible  of  social  and 
economic  opportunity  in  America.73 
Public  education  systems,  however,  have 
consistently  underserved  and  underedu- 
cated  handicapped  persons.  In  1975  the 
United  States  Congress  made  the  follow- 
ing findings: 


72  Gliedman  and  Roth,  The  Unexpected  Minori- 
ty, pp.  24,  30. 

73  In  the  oft-quoted  language  of  the  Supreme 
Court  in  Brown  v.  Board  of  Educ,  347  U.S.  483, 
493  (1954): 

Today,  education  is  perhaps  the  most  impor- 
tant function  of  state  and  local  governments. 
Compulsory  school  attendance  laws  and  the 
great  expenditures  for  education  both  dem- 
onstrate our  recognition  of  the  importance  of 
education  to  our  democratic  society.  It  is 
required  in  the  performance  of  our  most 


(4)  one  million  of  the  handicapped 
children  in  the  United  States  are 
excluded  entirely  from  the  public 
school  system  and  will  not  go 
through  the  educational  process 
with  their  peers; 


(5)  there  are  many  handicapped 
children  throughout  the  United 
States  participating  in  regular 
school  programs  whose  handicaps 
prevent  them  from  having  a  success- 
ful educational  experience  because 
their  handicaps  are  undetected.74 

basic  public  responsibilities,  even  service  in 
the  armed  forces.  It  is  the  very  foundation  of 
good  citizenship.  Today  it  is  a  principal 
instrument  in  awakening  the  child  to  cultur- 
al values,  in  preparing  him  for  later  profes- 
sional training,  and  in  helping  him  to  adjust 
normally  to  his  environment.  In  these  days, 
it  is  doubtful  that  any  child  may  reasonably 
be  expected  to  succeed  in  life  if  he  is  denied 
the  opportunity  of  an  education. 
74   20  U.S.C.  §1400(b)  (Supp.  IV  1980). 


27 


Congress  addressed  these  serious  prob- 
lems through  the  Education  for  All 
Handicapped  Children  Act,75  which  pro- 
vides Federal  grant  funding  to  the  States 
with  the  goal  of  assuring  "all  handi- 
capped children  the  right  to  a  free  appro- 
priate public  education."76  Almost  a 
decade  after  the  enactment  of  this  law,  a 
great  many  handicapped  children  con- 
tinue to  be  excluded  from  the  public 
schools,  and  others  are  placed  in  inap- 
propriate programs.77 

Overall,  handicapped  people  have  re- 
ceived much  less  education  than  their 
nonhandicapped  peers.  Some  34  percent 
of  severely  disabled  adults  have  had  8 
years  or  less  of  education  and  57  percent 
have  not  completed  high  school.  For  the 
nondisabled  population,  those  figures  are 
9  percent  and  23  percent,  respectively.78 
Although  these  figures  are  only  gross 
data  that  do  not  indicate  what  percent- 
age of  the  disabled  population  have  con- 
ditions such  as  mental  retardation  that 
might  affect  skills  involved  in  higher 
educational  levels,  they  nonetheless  are 

75  Pub.  L.  No.  94-142,  20  U.S.C.  §§1400-1461) 
(1976  and  Supp.  IV  1980);  chap.  3  under  the 
section  entitled  "Education  for  All  Handicapped 
Children  Act." 

76  20  U.S.C.  §1412(1)  (1976  and  Supp.  IV  1980). 

77  A  September  1982  survey  commissioned  by 
the  Department  of  Education  reports  that  22,610 
children  identified  as  handicapped  are  receiving 
no  education  whatever.  Another  31,976  are  in 
some  school  program  but  are  not  receiving  spe- 
cial education  services  that  they  have  been 
identified  as  needing.  Some  192,499  are  awaiting 
evaluations.  DBS  Corporation,  "1980  Elementary 
and  Secondary  Schools  Civil  Rights  Survey:  Na- 
tional Summaries,"  table  1  (under  contract  for 
U.S.  Dept.  of  Education)  (September  1982).  These 
figures  do  not  account  for  children  school  author- 
ities have  not  yet  identified  as  handicapped. 
Moreover,  the  numbers  quoted  are  probably 
significantly  underestimated;  they  are  projected 
estimates  based  upon  self-reported  numbers  sup- 
plied by  school  districts. 


evidence  of  a  substantial  disparity.  The 
higher  one  goes  on  the  education  scale, 
the  lower  the  proportion  of  handicapped 
people  one  finds.79 

The  ways  in  which  handicapped  chil- 
dren have  been  denied  equal  educational 
opportunity  are  legion.80  Many  have 
languished  for  months  or  years  on  wait- 
ing lists  for  placement  in  educational 
programs.  Public  education  agencies 
have  engaged  in  administrative  buck- 
passing  as  each  ascribes  to  other  agen- 
cies the  duty  of  providing  a  particular 
child  with  an  educational  program.  As  a 
result,  some  children  do  not  have  access 
to  a  program  from  any  agency.  School 
districts  have  lagged  far  behind  targeted 
dates  for  delivery  of  educational  services 
to  handicapped  children;  many  have 
used  funding  problems  as  an  excuse  for 
delaying  or  refusing  to  provide  pro- 
grams. 

In  addition,  numerous  children  have 
handicapping  conditions  that  significant- 
ly impair  their  educational  progress,  but 
because  these  conditions  have  not  been 

78  U.S.,  Department  of  Health  and  Human 
Services,  Social  Security  Administration,  Work 
Disabled  in  the  United  States,  A  Chartbook 
(1980)  chart  7  (hereafter  cited  as  Chartbook). 

79  According  to  one  survey,  people  with  some 
type  of  work  disability  are  38.5  percent  of  the 
portion  of  the  population  having  less  than  8  years 
of  education,  but  only  8.7  percent  of  the  group 
having  12  or  more  years  of  education.  Rehab. 
Group,  Inc.,  Digest  of  Data  on  Persons  with 
Disabilities  (under  contract  to  Congressional 
Research  Service)  (Washington,  D.C.:  Govern- 
ment Printing  Office,  1979),  table  5,  p.  17  (hereaf- 
ter cited  as  Digest). 

80  See,  e.g.,  Dennis  E.  Haggerty  and  Edward  S. 
Sacks,  "Education  of  the  Handicapped:  Towards 
a  Definition  of  an  Appropriate  Education,"  Temp. 
L.Q.,  vol.  50  (1977),  pp.  961-62;  "History  of 
Unequal  Treatment,"  pp.  879-83. 


28 


identified,  they  continue  to  receive  inap- 
propriate programs.  Instances  of  misclas- 
sification  are  widespread,  particularly 
regarding  members  of  ethnic  and  racial 
minorities.  Architectural  barriers  in 
school  buildings  have  sometimes  pre- 
vented appropriate  educational  place- 
ments. Schools  have  denied  handicapped 
children  recreational,  athletic,  and  ex- 
tracurricular activities  provided  for  non- 
handicapped  students.  The  goal  of 
"mainstreaming"  handicapped  pupils 
has  sometimes  been  misused  as  an  ex- 
cuse to  dump  them  into  the  regular 
classroom  environment  without  ade- 
quate support  services  and  personnel.  As 
could  be  expected,  this  disadvantages 
both  teachers  and  pupils.  On  the  other 
hand,  some  school  systems  have  unneces- 
sarily isolated  and  segregated  handi- 
capped children,  often  in  separate 
schools  and  facilities. 

Employment 

Statistical  studies  have  shown  that 
unemployment  rates  among  handi- 
capped people  are  drastically  higher 
than  rates  of  unemployment  for  nonhan- 
dicapped  people.81  Only  a  small  percent- 
age of  the  handicapped  Americans  who 
could  work  if  given  the  opportunity  are 
actually    employed.82      Unemployment 

81  Chartbook,  chart  14;  Barbara  L.  Wolfe,  "How 
the  Disabled  Fare  in  the  Labor  Market,"  Monthly 
Labor  Review,  vol.  103,  no.  9  (1980),  pp.  50-51;  J. 
Merrill  Shanks  and  Howard  E.  Freeman,  Execu- 
tive Summary  for  the  California  Disability  Sur- 
vey (prepared  for  the  Calif.  Department  of  Reha- 
bilitation) (Winter  1980),  table  ES  9. 

82  118  Cong.  Rec.  3320-21  (1972)  (statement  of 
Sen.  Williams);  "History  of  Unequal  Treatment," 
p.  864;  Note,  "Abroad  in  the  Land:  Legal  Strate- 
gies to  Effectuate  the  Rights  of  the  Physically 
Disabled,"  Geo.  L  J.  vol.  61  (1973),  p.  1512 
(hereafter  cited  as  "Abroad  in  the  Land"). 

83  President's  Committee  on  Employment  of  the 


rates  among  handicapped  workers  are 
currently  estimated  to  be  between  50  to 
75  percent,  up  from  a  pre-recession  rate 
of  45  percent.83  Furthermore,  studies 
indicate  that  only  in  a  tiny  percentage  of 
cases  is  inability  to  perform  a  regular, 
full-time  job  the  reason  a  handicapped 
person  is  not  employed.84 

Frequently,  employer  prejudices  ex- 
clude handicapped  persons  from  jobs. 
Biases  operate  subtly,  sometimes  uncons- 
ciously, to  eliminate  handicapped  job 
applicants  in  the  application,  screening, 
testing,  interviewing,  and  medical  exam- 
ination processes: 


Often,  the  employer  makes  errone- 
ous assumptions  regarding  the  effect 
of  a  person's  disability  on  his  or  her 
ability  to  perform  on  the  job.  In  most 
cases  the  disabled  person  is  never 
given  an  opportunity  to  disprove 
those  assumptions;  in  some  cases, 
the  disabled  person  never  knows 
why  he  or  she  didn't  get  the  job.85 

Only  an  estimated  one-third  of  the 
blind  people  and  fewer  than  half  of  the 
paraplegic  people  (those  whose  lower 
bodies  are  paralyzed  or  nonfunctional  on 
both  sides)  of  working  age  in  this  country 

Handicapped  figures  quoted  in  Handicapped 
Rights  and  Regulations,  vol.  4,  no.  7  (Apr.  5, 
1983),  p.  49. 

84  See,  e.g,  Berkeley  Planning  Associates,  Final 
Report:  Analysis  of  Policies  of  Private  Employers 
Toward  the  Disabled  (prepared  under  a  Dept.  of 
Health  and  Human  Services  contract)  (Novem- 
ber 1981),  p.  413  (hereafter  cited  as  Analysis  of 
Policies  of  Private  Employers). 

85  Deborah  Kaplan,  "Employment  Rights:  Histo- 
ry, Trends  and  Status,"  in  Law  Reform  in 
Disability  Rights,  vol.  2  (Berkeley:  Disability 
Rights  Education  and  Defense  Fund,  1981),  p.  E- 
4. 


29 


have  jobs.  Between  15  and  25  percent  of 
working-age  persons  with  epilepsy  and 
only  a  handful  of  those  with  cerebral 
palsy  have  been  able  to  secure  employ- 
ment.86 

The  majority  of  unemployed  handi- 
capped people,  if  given  the  chance,  are 
quite  capable  of  taking  their  places  in 
the  job  market.87  Numerous  studies 
indicate  that  handicapped  workers, 
when  assigned  appropriate  positions, 
perform  as  well  as  or  better  than  their 
nonhandicapped  fellow  workers.88  A 
U.S.  Civil  Service  Commission  study  of 
appointments  of  severely  handicapped 
workers  to  Federal  agency  jobs  over  a  10- 
year  period  concluded  that  "the  work 
record  is  excellent."89 

E.I.  du  Pont  de  Nemours  and  Company 
is  an  example  of  a  private  employer  that 
has  made  a  point  of  recruiting  handi- 
capped employees  and  has  monitored 
their  numbers  and  progress  in  the  com- 
pany. Du  Pont  has  achieved  a  reputation 
as  an  exemplary  employer  of  handi- 
capped people.  The  company's  reports 
are  replete  with  examples  of  successful 
case  stories:  a  man  whose  leg  was  ampu- 
tated as  a  result  of  a  military  injury  who 

86  118  Cong.  Rec.  3321.  A  study  of  severely 
handicapped  people  in  the  Richmond  area  indi- 
cated that  while  56  percent  of  those  responding 
were  under  age  45,  68  percent  had  high  school  or 
college  degrees,  and  85  percent  wanted  to  work, 
only  9  percent  were  earning  wages.  Handicapped 
Rights  and  Regulations,  vol.  3,  no.  20  (Oct.  5, 
1982),  p.  158. 

87  118  Cong.  Rec.  3320.  It  is  estimated  that  9  out 
of  10  mentally  retarded  persons  could  work  if 
given  proper  training  and  opportunities.  Gittler, 
"Fair  Employment  and  the  Handicapped,"  p.  954, 
n.  3;  "History  of  Unequal  Treatment,"  p.  864.  The 
15-25  percent  rate  of  employment  of  persons 
with  epilepsy  occurs  despite  the  fact  that  nearly 
80  percent  of  such  individuals  have  their  seizures 
under  control.  Gittler,  "Fair  Employment  and 
the  Handicapped,"  p.  954,  n.  3. 


serves  as  a  maintenance  mechanic;  men- 
tally retarded  messengers  who  have 
years  of  perfect  attendance,  excellent 
performance  records,  and  who  help  to 
train  new  messengers;  the  blind  comput- 
er programmer  whose  clear  and  orderly 
programs  have  earned  him  a  recent 
promotion;  a  woman  with  multiple  birth 
defects  and  an  artificial  leg  who  is  an 
excellent  stenographer;  a  deaf  and 
speechless  man  who  operates  and  trains 
others  to  use  Du  Pont's  computer-assis- 
ted machining  center;  a  polio  victim  who 
walks  with  a  leg  brace  who  serves  as  a 
computer  office  assistant;  a  blind  man 
who  is  a  highly  skilled  pump  mechanic.90 
The  company  has  also  documented  the 
accommodations  it  has  made  to  allow  its 
handicapped  employees  to  perform  suc- 
cessfully and  has  concluded,  "The  cost  of 
most  accommodations  is  nominal."91 
Other  major  companies,  including  the 
Xerox  Corporation,  AT&T,  the  Pruden- 
tial Insurance  Company,  Sears,  Roebuck 
and  Company,  Levi  Strauss  and  Compa- 
ny, IBM,  and  Control  Data  Corporation, 
have  made  similar  efforts  to  promote  the 
employment  of  handicapped  workers.92 

88  See  U.S.,  Department  of  Labor,  Bureau  of 
Labor  Standards,  Workmen's  Compensation  and 
the  Physically  Handicapped  Worker,  (Bulletin  no. 
234, 1961),  app.  5,  20. 

89  U.S.,  Civil  Service  Commission,  A  Chain  of 
Cooperation:  Severely  Physically  Disabled  Em- 
ployees in  the  Federal  Service  (1976),  p.  3. 

90  E.I.  du  Pont  de  Nemours  and  Co.,  Equal  to  the 
Task:  1981  Du  Pont  Survey  of  Employment  of  the 
Handicapped,  pp.  10-16  (hereafter  cited  as  Equal 
to  the  Task). 

91  Ibid.,  pp.  17-18. 

92  See,  e.g.,  Bob  Gatty,  "Business  Finds  Profit  in 
Hiring  the  Disabled,"  Nation's  Business  (Wash- 
ington, D.C.:  Chamber  of  Commerce  of  the  Unit- 
ed States,  1981),  pp.  30-35. 


30 


In  spite  of  these  positive  initiatives, 
however,  there  remains  a  long  way  to  go. 
In  1981  Du  Pont,  for  example  reported 
that  2.4  percent  of  its  employees  were 
handicapped,  an  89  percent  increase 
from  1973. 93  Thus,  even  in  this  well- 
regarded  program,  handicapped  people 
are  represented  in  much  smaller  propor- 
tions than  their  estimated  9  to  13  percent 
share  of  the  population  as  a  whole. 

The  Federal  Government  seeks  to  be 
"an  equal  opportunity  employer"  of 
handicapped  persons.94  A  1979  study  of 
Federal  employees  found  that  7.4  percent 
were  handicapped.  Of  the  new  employees 
hired  in  calendar  year  1979,  3.4  percent 
were  handicapped;  5.2  percent  of  promo- 
tions were  to  handicapped  persons.95 
These  figures  are  based  on  a  broad 
interpretation  of  the  meaning  of  handi- 
caps. In  contrast,  the  U.S.  Equal  Employ- 
ment Opportunity  Commission  has  iden- 
tified certain  severe  handicaps  as  "tar- 
geted disabilities"  for  Federal  agency 
recruitment  and  hiring  programs.96   The 

93  Equal  to  the  Task,  p.  5. 

94  See  124  Cong.  Rec.  30347  (1978)  (statement  of 
Sen.  Cranston);  S.  Rep.  No.  95-890,  95th  Cong.,  2d 
Sess.  18-19  (1978);  Shirey  v.  Devine,  670  F.2d 
1188, 1195,  n.  21, 1199  (D.C.  Cir.  1982). 

95  U.S.,  Office  of  Personnel  Management,  Statis- 
tical Profile  of  the  Handicapped  Federal  Civilian 
Employees  (August  1981),  pp.  6,  16.  Employees 
who  did  not  identify  their  handicap  status  were 
not  included  in  the  study. 

96  U.S.,  Equal  Employment  Opportunity  Com- 
mission, Management  Directive  711,  Nov.  2, 1982, 
p.  3.  The  targeted  disabilities  are:  deafness, 
blindness,  missing  extremities,  partial  and  com- 
plete paralysis,  convulsive  disorders,  mental  re- 
tardation, mental  illness,  and  distortion  of  limbs 
or  spine. 

97  Ibid.,  p.  A-l. 

98  Ibid.,  p.  A-2. 

99  Wolfe,  "How  the  Disabled  Fare  in  the  Labor 
Market,"  p.  50. 

100  See,  e.g.,  Berkeley  Planning  Associates,  Final 


EEOC  suggests  that  a  conservative  fig- 
ure of  6  percent  be  sought  as  the  propor- 
tion of  employees  with  the  targeted  disa- 
bilities in  the  Federal  work  force.97  As  of 
December  31,  1980,  persons  with  target- 
ed disabilities  were  only  0.85  percent  of 
the  total  Federal  work  force.98 

Those  handicapped  workers  who  are 
able  to  find  a  job  are  more  than  twice  as 
likely  as  nonhandicapped  persons  to 
work  part  time,99  in  spite  of  the  fact  that 
most  handicapped  individuals  are  able  to 
work  a  full,  standard,  8-hour  workday 
and  a  normal  5-day  workweek.100  Handi- 
capped employees  also  tend  to  be  under- 
paid. Studies  have  demonstrated  that, 
for  every  educational  level,  the  average 
wage  rate  of  disabled  people  is  below  that 
of  the  nondisabled  population.  For  hand- 
icapped people  with  12  years  of  educa- 
tion or  less,  the  average  wage  rate  is 
below  minimum  wage.101  Even  among 
those  who  have  attended  college,  the 
differences  are  large.102  Among  full- 
time,    full-year   workers,    handicapped 

Report:  Analysis  of  Policies  of  Private  Employers 
Toward  the  Disabled  (prepared  under  a  Dept.  of 
Health  and  Human  Services  contract)  (Novem- 
ber 1981),  p.  413  (hereafter  cited  as  Analysis  of 
Policies  of  Private  Employers). 
ioi  w0ife;  "How  the  Disabled  Fare  in  the  Labor 
Market,"  p.  50. 

102  Among  men  who  are  full-time,  full-year 
workers,  disabled  workers  earn,  in  general,  less 
than  90  percent  of  what  the  nondisabled  earn. 
The  biggest  difference  is  among  the  lowest  educa- 
tional group,  where  disabled  workers  earn  less 
than  80  percent  of  what  the  nondisabled  earn. 
Similarly,  among  women  who  work  full  time, 
year  round,  the  largest  difference  is  also  among 
the  lowest  educational  group,  where  disabled 
persons  earn  approximately  half  of  what  the 
nondisabled  earn.  In  other  educational  groups, 
disabled  women  also  do  more  poorly  (relative  to 
men)  compared  to  their  nondisabled  peers,  earn- 
ing between  62  percent  and  79  percent  of  what 
the  nondisabled  earn.  Ibid.,  p.  51. 


31 


persons  earn  less  than  their  nonhandi- 
capped  counterparts  within  each  sex, 
educational,  and  racial  grouping.103 

Such  differences  in  wage  levels  cannot 
be  explained  by  any  differential  in  pro- 
ductivity. Studies  dating  back  to  a  mas- 
sive 1948  Department  of  Labor  study  of 
disabled  and  nondisabled  workers  have 
consistently  concluded  that  handicapped 
and  nonhandicapped  workers  are  equal- 
ly productive.104  A  recent  survey  of  such 
research  studies  concluded:  "the  existing 
literature  appears  to  show  both  that  the 
disabled  who  are  working  are  as  produc- 
tive in  their  jobs  as  their  co-workers  and 
that  employers  perceive  the  handicapped 
as  being  comparably  productive."105 

Some  authorities  have  noted  that 
handicapped  people  are  subject  to  "job 
stereotyping,"  whereby  employers  or  vo- 
cational guidance  counselors  channel  ev- 
eryone with  particular  disabilities  into 
particular  types  of  jobs.106  In  some 
instances,  this  means  that  handicapped 
persons  are  considered  more  suited  for 
unskilled,  low-paying  positions  involving 
monotonous  tasks.107 

The  inequality  of  employment  oppor- 
tunities results  in  general  economic  dis- 

103  Ibid. 

104  See  studies  cited  in  Analysis  of  Policies  of 
Private  Employers,  pp.  415-16. 

105  Ibid.,  p.  434. 

106  Kaplan,  "Employment  Rights:  History, 
Trends  and  Status,"  p.  E-9;  Brian  J.  Linn,  "Uncle 
Sam  Doesn't  Want  You:  Entering  the  Federal 
Stronghold  of  Employment  Discrimination 
Against  Handicapped  Individuals,"  De  Paul  L. 
Rev.,  vol.  27  (1978),  p.  1051,  n.  20. 

107  "History  of  Unequal  Treatment,"  p.  865. 

108  Chart  book,  chart  15. 

109  Digest,  table  5,  p.  18. 

110  Digest,  chart  4,  p.  11. 

111  "Analysis  of  Policies  of  Private  Employers," 
p.  421. 

112  See,  e.g.,  Erving  Goffman,  Asylums  (Chicago: 


parity  for  handicapped  people.  In  1977 
the  median  family  income  of  nondisabled 
individuals  was  nearly  double  that  of  the 
severely  disabled  population.  Similarly, 
fewer  than  30  percent  of  severely  dis- 
abled persons  reported  family  incomes  of 
$15,000  or  more,  while  the  figure  was 
nearly  60  percent  for  nondisabled  people. 
Almost  30  percent  of  severely  disabled 
people  had  incomes  of  less  than  $5,000, 
compared  with  11  percent  of  the  nondisa- 
bled population.108  According  to  one 
study,  28.7  percent  of  those  in  poverty 
and  only  11.8  percent  of  those  above  the 
poverty  level  had  a  work  disability.109 
Another  study  found  that  between  20 
and  30  percent  of  those  reporting  physi- 
cal impairments  fell  below  the  $5,000 
income  range.110  As  noted  previously, 
studies  have  consistently  indicated  that 
impaired  ability  of  handicapped  people 
accounts,  at  most,  for  a  small  proportion 
of  the  lower  incomes  they  experience.111 

Institutionalization 

Popular  and  professional  literature 
contains  abundant  discussion  of  prob- 
lems with  large-scale  residential  institu- 
tions  for   handicapped   people.112      The 

Aldine  Publishing  Co.,  1961);  David  Ferleger, 
"Loosing  the  Chains:  In-Hospital  Civil  Liberties 
of  Mental  Patients,"  Santa  Clara  Lawyer,  vol.  13 
(1973),  pp.  447-500;  Burton  Blatt  and  Fred  Ka- 
plan, Christmas  in  Purgatory:  A  Photographic 
Essay  on  Mental  Retardation  (Boston:  Burton 
Blatt,  1966);  Wolfensberger,  "The  Origin  and 
Nature  of  Our  Institutional  Models";  Ken  Kesey, 
One  Flew  Over  the  Cuckoo's  Nest  (New  York: 
Signet,  1962);  Geraldo  Rivera,  Willowbrook:  A 
Report  on  How  It  is  and  Why  It  Doesn't  Have  to 
Be  That  Way  (New  York:  Vintage  Books,  1972); 
Stanley  Herr,  "Civil  Rights,  Uncivil  Asylums  and 
the  Retarded,"  U.  Cin.  L.  Rev.,  vol.  43,  no.  4 
(1974),  p.  679;  Burton  Blatt,  Exodus  from  Pande- 
monium (Boston:  Allyn  &  Bacon,  1970);  Kenneth 
Donaldson,    Insanity   Inside    Out   (New   York: 


32 


harshest  side  of  institutionalization  is 
the  systematic  placement  of  handicapped 
people  in  substandard  residential  facili- 
ties, where  incidents  of  abuse  by  staff 
and  other  residents,  dangerous  physical 
conditions,  gross  understaffing,  overuse 
of  medication  to  control  residents,  medi- 
cal experimentation,  inadequate  and  un- 
sanitary food,  sexual  abuses,  use  of  soli- 
tary confinement  and  physical  re- 
straints, and  other  serious  deficiencies 
and  questionable  practices  have  been 
reported.113 

Such  conditions  are  not,  of  course, 
characteristic  of  all  residential  facilities. 
Many  institutions  for  handicapped  peo- 
ple are  humane  and  well  run,  although 
they  often  lack  adequate  programing  for 
residents.114  But  even  the  better  institu- 
tions suffer  the  ill  effects  of  segregation: 


As  instruments  of  segregation,  insti- 
tutions are  undeniably  effective. 
Typically  located  in  rural  areas, 
they  become  small  worlds  unto 
themselves. 


As  vehicles  of  administrative  conve- 
nience, they  are  equally  successful. 

Within  the  institution  operational 
efficiency  is  achieved  through  time- 
honored  mass  production  tech- 
niques, permitting  the  employment 
of  highly  specialized  staff,  homoge- 
neous grouping  of  the  children,  and 
centralized  support  services. 

As  settings  for  individual  growth 
and  development,  however,  institu- 
tions may  be  the  worst  possible 
arrangement.115 


Institutions  serve  two  central  pur- 
poses. First,  they  segregate  disabled 
people  from  the  community;  and 
second,  they  provide  convenience  for 
administrators  and  instructional 
personnel  because  children  with  a 
given  disability  are  concentrated  to- 
gether and  readily  accessible. 


Institutionalization  almost  by  defini- 
tion entails  segregation  and  isolation: 
"Not  only  is  segregation  of  the  sexes 
prevalent,  but  segregation  from  families, 
normal  society  and  peer  groups  is  also  a 
product  of  institutionalization."116  In- 
deed, a  desire  to  segregate  handicapped 
people  from  the  rest  of  society  prompted 
the  development  of  residential  institu- 


Crown,  1976);  D.L.  Rosenhan,  "On  Being  Sane  in 
Insane  Places,"  Science,  vol.  179  (1973),  pp.  250- 
58;  and  Anne  Barry,  Bellevue  Is  a  State  of  Mind 
(New  York:  Harcourt  Brace  Jovanovich,  Inc., 
1971). 

113  See,  e.g.,  Herr,  "Civil  Rights,  Uncivil  Asylums 
and  the  Retarded,"  pp.  685-90;  "History  of  Une- 
qual Treatment,"  pp.  889-91;  Parham  v.  J.R.,  442 
U.S.  584,  626-27  (1979)  (Brennan,  J.,  concurring 
in  part  and  dissenting  in  part).  See  also  Wyatt  v. 
Stickney,  344  F.  Supp.  387,  391  (M.D.  Ala.  1972) 
(quoting  unreported  interim  emergency  order, 
Mar.  2,  1972);  Clark,  "The  New  Snake  Pits," 
Newsweek,  May  15,  1978,  p.  93;  In  re  D.,  70  Misc. 
2d  953,  335  N.Y.S.  2d  638,  649  (1972). 


114  See,  e.g.,  Daryl  Paul  Evans,  The  Lives  of 
Mentally  Retarded  People  (Boulder,  Colo.:  West- 
view  Press,  1983),  p.  223;  S.  Rep.  No.  94-160,  94th 
Cong.  1st  Sess.  (1975);  121  Cong.  Rec.  29820-21 
(1975)  (statement  of  Sen.  Javits);  121  Cong.  Rec. 
16518  (1975)  (statement  of  Sen.  Javits);  121  Cong. 
Rec.  16516  (1975)  (statement  of  Sen.  Randolph). 

115  Bow re,  Handicapping  America,  pp.  143-44. 

116  "History  of  Unequal  Treatment,"  p.  890;  see 
also  Parham  v.  J.R.,  442  U.S.  584,  626  (1978) 
(Brennan,  J.,  concurring  in  part  and  dissenting 
in  part). 


33 


tions.117  This  segregationist  purpose  still 
operates,  one  authority  on  institutions 
for  mentally  retarded  people  has  con- 
tended: 


The  complementary  goals  of  isola- 
tion and  segregation  are  still  pur- 
sued today.  Old  institutions  are  still 
being  enlarged;  and  despite  the  fact 
that  normalizing  community  ser- 
vices have  been  shown  to  be  less 
expensive  than  institutional  ser- 
vices, new  institutions  are  still  being 
built  for  upwards  of  1,000  residents 
at  a  capital  cost  per  resident,  for 
example  of  $24,000  in  Illinois, 
$30,000  in  Missouri,  $35,000  in  New 
York,  and  even  more.  This  continued 
expansion  of  uneconomic  institu- 
tional services  can  only  be  interpre- 
ted as  an  expression  of  the  desire  on 
the  part  of  society  and  those  respon- 
sible for  the  delivery  of  services  to 
continue  to  segregate  and  dehuman- 
ize mentally  retarded  individuals. 
Institutions  are  still  omnibus  in  pur- 
pose,  and   lack   rational   admitting 


117  Wolfensberger,  "The  Origin  and  Nature  of 
Our  Institutional  Models,"  pp.  94-126;  "History 
of  Unequal  Treatment,"  p.  889;  Herr,  "Civil 
Rights,  Uncivil  Asylums  and  the  Retarded,"  p. 
682,  n.  17. 

118  Affidavit  of  W.  Wolfensberger,  Maryland 
Ass'n  for  Retarded  Children  v.  Maryland,  Civil 
No.  72-733-M  (Md.  Cir.  Ct.  Baltimore  Cty.,  filed 
Apr.  9,  1974),  p.  8,  quoted  in  Herr,  "Civil  Rights, 
Uncivil  Asylums  and  the  Retarded,"  p.  699. 

119  Halderman  v.  Pennhurst  State  School  and 
Hosp.,  446  F.  Supp.  1295,  1311  (E.D.  Pa.  1977), 
reversed  on  other  grounds,  451  U.S.  1  (1981); 
Bruce  G.  Mason,  Frank  J.  Menolascino,  and 
Lorin  Galvin,  "The  Right  to  Treatment  for 
Mentally  Retarded  Citizens:  An  Evolving  Legal 
and  Scientific  Interface,"  Creighton  L.  Rev.  vol. 
10  (1976),  pp.  124-27;  Herr,  "Civil  Rights,  Uncivil 
Asylums  and  the  Retarded,"  p.  687;  Lloyd  M. 
Dunn,  "Small  Special-Purpose  Residential  Facili- 
ties for  the  Retarded,"  in  Changing  Patterns  in 
Residential  Services  for  the  Mentally  Retarded, 


criteria,  intellectualized  lipservice 
notwithstanding.  Institutions  are 
still  placed  in  inappropriate  isolated 
locations,  and  even  the  most  expen- 
sive ones  are  still  dehumanizing.118 

There  has  been  increasing  acceptance 
in  recent  years  of  the  fact  that  most 
training,  treatment,  and  habilitation  ser- 
vices can  be  better  provided  to  handi- 
capped people  in  small,  community- 
based  facilities  rather  than  in  large, 
isolated  institutions.119  Professionals, 
courts,  Congress,  and  more  than  one 
President  have  called  for  "deinstitution- 
alization" and  the  development  of  appro- 
priate community  programs.120  Because 
of  such  official  reorientation  toward  com- 
munity alternatives  and  a  variety  of 
other  factors  (such  as  the  emergence  of 
new  service  philosophies  among  human 
service  professionals  and  the  develop- 
ment of  drug  therapies  and  other  novel 
treatment  approaches),  the  number  of 
handicapped  persons  in  residential  facili- 

ed.  Robert  B.  Kugel  and  Wolf  Wolfensberger 
(Washington,  D.C.:  President's  Committee  on 
Mental  Retardation,  1969),  pp.  213-20. 
120  Dunn,  "Small  Special-Purpose  Residential 
Facilities  for  the  Retarded,"  pp.  213-20;  Presi- 
dent's Message,  88th  Cong.,  1st  Sess.,  reprinted  in 
1963  U.S.  Code  Cong.  &  Ad.  News  1466,  1474; 
H.R.  Rep.  No.  88-694,  88th  Cong.,  1st  Sess., 
reprinted  in  1963  U.S.  Code  Cong.  &  Ad.  News 
1054,  1062;  S.  Rep.  No.  90-725,  90th  Cong.,  1st 
Sess.,  reprinted  in  1967  U.S.  Code  Cong.  &  Ad. 
News  2061,  2062;  S.  Rep.  No.  94-160,  94th  Cong., 
1st  Sess.  26-34  (1975);  121  Cong.  Rec.  16516-20 
(1975)  (statement  of  Sen.  Randolph);  121  Cong. 
Rec.  29819-21  (1975)  (statement  of  Sens.  Stafford 
and  Javits);  H.R.  Rep.  No.  94-58,  94th  Cong.,  1st 
Sess.  reprinted  in  1975  U.S.  Code  Cong.  &  Ad. 
News  919,  925;  U.S.,  General  Accounting  Office, 
Returning  the  Mentally  Disabled  to  the  Commu- 
nity: Government  Needs  to  Do  More  (1977),  pp.  3- 
4  (hereafter  cited  as  GAO  Report). 


34 


ties  has  dwindled  in  the  past  two  de- 
cades.121 

Despite  such  initiatives,  a  great  many 
handicapped  persons  remain  in  segrega- 
tive facilities.  The  Comptroller  General 
has  estimated  that  about  215,500  persons 
were  residing  in  public  mental  hospitals 
in  1974  and  that  some  181,000  persons 
were  in  public  institutions  for  mentally 
retarded  people  as  of  1971. 122  In  1976  one 
study  estimated  that  1,550,120  persons 
were  in  long  term  residential  care  facili- 
ties.123 

The  process  of  deinstitutionalization, 
moreover,  has  not  been  problem  free.  All 
too  often,  it  has  been  distorted  to  justify 
turning  residents  out  of  an  institution 
without  arrangements  for  appropriate 
housing  or  programs  in  the  community. 
Patients  summarily  banished  from  insti- 
tutions and  left  to  fend  for  themselves 
often  wind  up  as  victims  of  crime  or  as 


121  GAO  Report,  p.  8. 

122  Ibid.,  pp.  8-9. 

123  These  included:  facilities  for  the  mentally 
retarded  (189,210);  children's  facilities  (43,790); 
psychiatric  institutions  (65,400);  nursing  homes 
(1,182,670);  facilities  for  the  physically  handi- 
capped (37,780);  and  other  facilities  (31,270).  U.S., 
Department  of  Commerce,  Bureau  of  the  Census, 
Survey  of  Institutionalized  Persons,  1976,  as  re- 
ported in  Digest,  p.  108.  "Long-term  care  facili- 
ties" are  those  in  which  residents'  average  stay  is 
30  days  or  more.  Due  to  survey  data  limitations, 
these  figures  do  not  include  residents  of  large, 
publicly  owned  psychiatric  hospitals  containing 
some  240,000  to  270,000  beds.  Digest,  p.  126. 
Additionally,  the  inclusion  of  nursing  home  resi- 
dents in  these  figures  is  problematic;  nursing 
homes  range  from  small,  well-run  facilities  that 
are  highly  integrated  into  the  surrounding  com- 
munity to  larger  agencies  that,  as  the  Comptrol- 
ler General  has  noted,  are  equivalent  to  large- 
scale  residential  institutions.  GAO  Report,  p.  10. 
Moreover,  nursing  homes  frequently  house  resi- 
dents who  are  not  handicapped.  Nonetheless, 
nursing  homes  do  represent  the  largest  single 
type  of  facility  providing  care  for  mentally  ill 
persons.  Ibid.,  p.  11. 


residents  of  substandard  nursing  homes 
and  rundown  hotels.124 


Medical  Treatment 

Handicapped  people  also  face  discrimi- 
nation in  the  availability  and  delivery  of 
medical  services.  While  occasional  deni- 
als of  routine  medical  care  have  been 
reported,125  a  much  more  serious  prob- 
lem involves  the  apparent  withholding  of 
lifesaving  medical  treatment  from  indi- 
viduals, frequently  infants,  solely  be- 
cause they  are  handicapped.126 

Recently,  widely  publicized  denials  of 
medical  treatment  to  handicapped  in- 
fants have  occurred  in  Indiana,127  Illi- 
nois,128 and  California.129  In  response  to 
these  incidents,  President  Reagan  direct- 
ed the  Attorney  General  and  the  Secre- 
tary of  Health  and  Human  Services  to 
notify  all  hospitals  receiving  Federal 
financial  assistance  that  failure  to  pro- 

124  See,  e.g,  GAO  Report,  pp.  8,  13-16;  Clark, 
"The  New  Snake  Pits,"  pp.  93-94. 

125  See,  e.g,  Lyons  v.  Grether,  239  S.E.2d  103  (Va. 
1977)  (physician  refused  to  treat  a  blind  woman 
with  a  guide  dog).  See  generally  Legal  Rights  of 
Handicapped  Persons,  pp.  753-856. 

126  See,  e.g.,  Raymond  S.  Duff  and  A.G.M. 
Campbell,  "Moral  and  Ethical  Dilemmas  in  the 
Special-Care  Nursery,"  New  England  Journal  of 
Medicine,  vol.  289,  no.  17  (1973),  p.  890;  Anthony 
Shaw,  "Doctor,  Do  We  Have  A  Choice?"  New 
York  Times  Magazine,  Jan.  30,  1972,  p.  44;  128 
Cong.  Rec.  S6142-55  (daily  ed.  May  26,  1982) 
(statement  of  Sens.  Denton  and  Hatch).  Denials 
of  lifesaving  medical  treatment  to  severely  hand- 
icapped newborns  in  the  United  States  have  been 
estimated  to  be  several  thousand  each  year.  New 
York  Times,  June  12,  1974,  p.  18;  "History  of 
Unequal  Treatment,"  p.  867. 

127  George  Will,  "The  Killing  Will  Not  Stop," 
Washington  Post,  Apr.  22, 1982,  p.  A29. 

128  Washington  Times,  May  17, 1982,  p.  1. 

129  Guardianship  of  Phillip  B.,  188  Cal.  Rptr.  781 
(App.  1983). 


35 


vide  medical  services  because  a  person  is 
handicapped  constitutes  discrimination 
prohibited  by  Federal  law.130  Attempts 
to  secure  medical  treatment  for  handi- 
capped children  have  resulted  in  a  num- 
ber of  court  cases.131 

Another  problem  involves  the  imposi- 
tion of  drastic  medical  procedures  upon 
handicapped  people  without  their  con- 
sent. Nonconsensual  electroconvulsive 
therapy  (electroshock),132  psychosurger- 
y,133  and  the  administration  of  psycho- 
tropic drugs134  have  generated  particu- 
lar controversy  and  litigation.  In  addi- 
tion, handicapped  persons  have  some- 
times  been    used   as   human    research 


130  White  House  Memorandum,  Apr.  30,  1982 
reprinted  in  128  Cong.  Rec.  S6154-55  (daily  ed. 
May  26,  1982).  Interim  final  regulations  imple- 
menting the  President's  directive  have  been 
published,  48  Fed.  Reg.  9630  (Mar.  7,  1983),  but 
declared  invalid  because  of  failure  to  observe 
rulemaking  standards  of  the  Administrative  Pro- 
cedure Act.  American  Academy  of  Pediatrics  v. 
Heckler,  C.A.  No.  83-0774  (D.D.C.,  Apr.  14,  1983). 

131  E.g.,  Application  of  Cicero,  101  Misc.  2d  699, 
421  N.  Y.S.  2d  965  (1979);  Guardianship  of  Phillip 
B.,  188  Cal.  Rptr.  781  (App.  1983);  Maine  Medical 
Center  v.  Houle,  Civ.  Action  Docket  No.  74-145 
(Super.  Ct.  Cumberland,  Me.,  Feb.  14,  1974).  See 
also  In  re  Custody  of  a  Minor,  375  Mass.  733,  379 
N.E.2d  1053  (1978).  For  a  decision  setting  out 
comprehensive  standards  and  procedures  for 
making  decisions  concerning  lifesaving  or  life- 
prolonging  medical  treatment  for  mentally  in- 
competent adults,  see  Superintendent  of  Belcher- 
town  v.  Saikewicz,  373  Mass.  728,  370  N.E.2d  417 
(1977). 

132  See,  e.g.,  New  York  City  Health  and  Hosp. 
Corp.  v.  Stein,  70  Misc.  2d  944,  335  N.Y.S.  2d  461 
(1972);  Price  v.  Sheppard,  307  Minn.  250,  239 
N.W.2d  905  (1976).  See  Note,  "Regulation  of 
Electroconvulsive  Therapy,"  Mich.  L.  Rev.,  vol. 
75  (1976),  pp.  363-412;  Erin  Moore,  "Legislative 
Control  of  Shock  Treatment,"  U.S.F.L.  Rev.,  vol. 
9  (1975),  pp.  738-80. 

133  See,  e.g.,  Aden  v.  Younger,  57  Cal.  App.  3d 
662,  129  Cal.  Rptr.  535  (1976).  See  also  "Sympo- 
sium on  Psychosurgery,"  B.U.L.  Rev.,  vol.  54 
(1974),  pp.  215-353;  J.  Douglas  Peters  and  Jerry 


subjects  for  medical  experimentation135 
and   as   an   easily   exploited   source   of 
organ  transplants.136 

Sterilization 

Under  State  statutes  and,  many  times, 
even  in  the  absence  of  statutory  authori- 
zation, mentally  and  physically  handi- 
capped people  have  been  sterilized  with- 
out their  consent.137  In  the  late  1950s,  28 
States  had  sterilization  statutes;  17  in- 
cluded persons  with  epilepsy,  along  with 
mentally  ill  and  mentally  retarded  indi- 


Lee,  "Psychosurgery:  A  Case  for  Regulation," 
Det.  C.L.  Rev.,  1978,  pp.  383-411;  Ann  L.  Plamon- 
don,  "Psychosurgery:  The  Rights  of  Patients," 
Loy.  L.  Rev.,  vol.  23  (1977),  pp.  1007-28. 

134  See,  e.g,  Mills  v.  Rogers,  102  S.Ct.  2442  (1982); 
Rennie  v.  Klein,  653  F.2d  836  (3d  Cir.  1981);  In  re 
Guardianship  of  Roe,  III,  421  N.E.2d  40  (Mass. 
1981);  Knecht  v.  Gillman,  488  F.2d  1136  (8th  Cir. 
1973).  See  also  Robert  Plotkin,  "Limiting  the 
Therapeutic  Orgy:  Mental  Patients'  Right  to 
Refuse  Treatment,"  Nw.  U.L.  Rev.,  vol.  72  (1977), 
pp.  474-79. 

135  See,  e.g,  Kaimowitz  v.  Michigan  Dep't  of 
Mental  Health,  No.  73-19434-AW  (Mich.  Circ. 
Ct.  of  Wayne  Cty.,  July  10,  1973),  summarized  in 
42  U.S.L.W.  2063  (July  31,  1973),  and  reproduced 
in  Legal  Rights  of  Handicapped  Persons,  pp.  808- 
24.  See  also  Basic  HHS  Policy  for  Protection  of 
Human  Research  Subjects,  45  C.F.R.  §§46.01- 
46.306  (1982). 

136  Kg,  Little  v.  Little,  576  S.W.2d  493  (Civ.  App. 
Tex.  1979);  Strunk  v.  Strunk,  445  S.W.2d  145  (Ky. 
1969);  Lausier  v.  Pescinski,  67  Wis.2d  4,  226 
N.W.2d  180  (1975);  In  re  Richardson,  284  So.2d 
185  (La.  App.  1973),  cert,  denied,  284  So.2d  338 
(La.  1973).  See  John  A.  Robertson,  "Organ  Dona- 
tions by  Incompetents  and  the  Substituted  Judg- 
ment Doctrine,"  Colum.  L.  Rev.,  vol.  76  (1976),  pp. 
48-78. 

137  "History  of  Unequal  Treatment,"  p.  861; 
Irwin  N.  Perr,  "Epilepsy  and  the  Law,"  Clev.- 
Mar.  L.  Rev.,  vol.  7  (1958),  p.  289;  "Wicked  Witch: 
Sterilization  of  Handicapped  Persons,"  pp.  1020- 
34. 


36 


viduals,  as  targets  for  compulsory  steril- 
ization.138 In  1927,  at  the  height  of  a 
subsequently  repudiated  eugenics  move- 
ment, even  the  United  States  Supreme 
Court  approved  the  practice  of  involun- 
tary sterilization.139  Justice  Holmes,  in 
Buck  v.  Bell,  declared: 


It  is  better  for  all  the  world,  if 
instead  of  waiting  to  execute  degen- 
erate offspring  for  crime,  or  to  let 
them  starve  for  their  imbecility, 
society  can  prevent  those  who  are 
manifestly  unfit  from  continuing 
their  kind.  .  .  .Three  generations  of 
imbeciles  are  enough.140 

Although  sterilization  of  handicapped 
persons  has  been  the  subject  of  much 
debate  and  litigation,141  the  1927  case  is 
now  generally  considered  of  doubtful 
validity  as  a  legal  precedent.142  Nonethe- 
less, both  compulsory  sterilization  stat- 
utes and  the  practice  of  performing  in- 
voluntary sterilizations,  although  steadi- 


138  "History  of  Unequal  Treatment,"  p.  861; 
Perr,  "Epilepsy  and  the  Law,"  p.  290. 

139  Buck  v.  Bell,  274  U.S.  200  (1927). 

140  Id.  at  207. 

141  See,  e.g.,  cases  discussed  in  "Wicked  Witch: 
Sterilization  of  Handicapped  Persons,"  pp.  1013- 
33,  and  in  Legal  Rights  of  Handicapped  Persons, 
pp.  857-918;  see  also  Parham  v.  J.R.,  442  U.S.  584, 
630-31,  n.  18  (1978)  (Brennan,  J.,  concurring  in 
part  and  dissenting  in  part). 

142  See,  e.g,  Charles  W.  Murdock,  "Sterilization 
of  the  Retarded:  A  Problem  or  a  Solution?"  Cal. 
L.  Rev.,  vol.  62  (1974),  pp.  921-22;  "Wicked  Witch: 
Sterilization  of  Handicapped  Persons,"  pp.  1006- 
13;  North  Carolina  Ass'n  for  Retarded  Children 
v.  State,  420  F.  Supp.  451,  454  (M.D.  N.C.  1976). 

143  "Wicked  Witch:  Sterilization  of  Handicapped 
Persons,"  pp.  1022-23;  Elyce  Zenoff  Ferster, 
"Eliminating  the  Unfit — Is  Sterilization  the  An- 
swer?" Ohio  St.  L.J.,  vol.  27  (1966),  pp.  613,  619; 
North  Carolina  Ass'n  for  Retarded  Children  v. 
State,  420  F.  Supp.  451,  454  (M.D.  N.C.  1976). 


ly  dwindling,143  continue.  Currently  15 
States  have  statutes  authorizing  compul- 
sory sterilization  of  mentally  ill  or  men- 
tally retarded  individuals,  and  at  least  4 
authorize  the  sterilization  of  persons 
with  epilepsy.144  And  although  exact 
statistics  are  not  available,  commenta- 
tors are  in  general  agreement  that  invol- 
untary sterilizations  of  handicapped  per- 
sons, both  pursuant  to  State  statutes  and 
in  the  absence  of  statutory  authorization, 
continue  to  be  performed.145  Lawsuits 
dealing  with  sterilizations  of  handi- 
capped persons  command  a  good  deal  of 
judicial  attention.146  The  only  U.S.  Su- 
preme Court  case  since  Buck  v.  Bell  to 
deal  with  sterilization  of  a  handicapped 
person  involved  a  document  signed  by  an 
Indiana  judge  ordering  the  sterilization 
of  a  15-year-old,  "somewhat  retarded" 
girl,  even  though  Indiana  had  no  statute 
authorizing  such  a  procedure.  The  girl 
was  told  that  she  was  having  her  appen- 
dix removed.  Only  much  later,  after  she 
had  married  and  could  not  conceive,  did 
she  learn  that  she  had  been  sterilized.147 

144  A  list  of  these  statutes  is  set  out  in  "Develop- 
ments in  the  Law — The  Constitution  and  the 
Family,"  Harv.  L.  Rev.,  vol.  93  (1980),  p.  1297,  nn. 
12  and  13  (hereafter  cited  as  "Constitution  and 
the  Family"). 

145  "Constitution  and  the  Family,"  p.  1298. 

146  Eg,  In  re  C.D.M.,  627  P.2d  607  (Alas.  1981); 
In  re  Guardianship  of  Hayes,  93  Wash.  228,  608 
P.2d  635  (1980);  In  re  Grady,  85  N.J.  235,  426  A.2d 
467  (1981);  In  re  Penny  N,  120  N.H.  269,  414  A.2d 
541  (1980);  In  re  A.W.,  637  P.2d  366  (Colo.  1981); 
In  re  Guardianship  of  Eberhardy,  102  Wis.  2d 
539,  307  N.W.  2d  881  (1981);  In  re  Mary  Moe,  385 
Mass.  App.  555,  432  N.E.  2d  712  (1982);  Wentzel  v. 
Montgomery  General  Hosp.,  293  Md.  685,  447 
A.2d  1244  (1982);  see  also  Parham  v.  J.  R.,  442 
U.S.  584,  630-31,  n.  18  (1979)  (Brennan  J., 
concurring  in  part  and  dissenting  in  part). 

147  Stump  v.  Sparkman,  435  U.S.  349,  351,  353 
(1978).  Under  the  doctrine  of  judicial  immunity, 


37 


Architectural  Barriers 

Buildings,  thoroughfares,  and  open 
areas  have  generally  been  designed  for 
an  ideal  user  with  average  physical  pro- 
ficiency. As  such,  they  are  inaccessible  to 
many  individuals  with  certain  kinds  of 
handicaps.148  The  barriers  take  a  variety 
of  forms:  stairs,  escalators,  narrow  door- 
ways, revolving  doors,  inaccessible  rest- 
room  facilities,  narrow  aisles,  drinking 
fountains  and  light  switches  that  are  too 
high,  fire  alarm  boxes  that  cannot  be 
reached,  lack  of  raised  letter  and  braille 
signs,  overly  sloped  or  excessively  long 
ramps,  telephone  booths  and  elevator 
controls  that  are  difficult  to  reach,  car- 
peting and  floor  surfaces  that  are  slip- 
pery or  too  spongy,  sidewalks  without 
curb  cuts,  lack  of  handrails  and  grab 
bars,  and  others. 

It  has  been  more  than  20  years  since 
the  American  National  Standards  Insti- 
tute (ANSI)149  published  architectural 
accessibility  standards,  which  addressed 
such  matters  as  parking  lots,  ramps, 
doors  and  doorways,  restroom  facilities, 


the  United  States  Supreme  Court  held  that  she 
had  no  legal  recourse  against  the  judge  who 
approved  the  involuntary  sterilization  that  had 
been  performed  upon  her.  Id.  at  362-64. 

148  Don  F.  Nicolai  and  William  J.  Ricci,  "Access 
to  Buildings  and  Equal  Employment  Opportunity 
For  the  Disabled:  Survey  of  State  Statutes," 
Temp.  L.Q.,  vol.  50  (1977),  pp.  1067-68  (hereafter 
cited  as  "Survey  of  State  Statutes"). 

149  ANSI  is  a  private  institution  located  in  New 
York  City,  not  connected  with  the  Federal  Gov- 
ernment, that  provides  a  mechanism  for  creating 
voluntary  consensus  standards.  97  Fed.  Reg. 
33863  (1982). 

150  American  National  Standards  Institute, 
American  Standard  Specifications  for  Making 
Buildings  and  Facilities  Accessible  to  and  Usable 
By  the  Physically  Handicapped  A  117.1-1961, 
reprinted  in  revised  form  in  36  C.F.R.  1190. 

151  Ibid.  Bowe,  Handicapping  America,  pp.  77-78. 

152  "Survey  of  State  Statutes,"  pp.  1074-76. 

153  Hull,  The  Rights  of  Physically  Handicapped 


and  warning  signals.150  Among  other 
things,  the  ANSI  standards  require:  (1) 
at  least  one  ground-level  entrance  to  a 
building;  (2)  ramps  in  at  least  one  loca- 
tion; (3)  doorways  32  inches  wide  or 
wider;  (4)  restrooms  that  can  accommo- 
date wheelchairs;  (5)  access  to  elevators; 
and  (6)  safe  parking  for  handicapped 
persons.151  Many  State  laws  and  build- 
ing codes,152  as  well  as  the  General 
Services  Administration,  Department  of 
Housing  and  Urban  Development,  De- 
partment of  Defense,  and  other  Federal 
agencies,153  adopted  the  ANSI  standards. 
Recently,  the  Federal  Architectural  and 
Transportation  Barriers  Compliance 
Board  published  comprehensive  "Mini- 
mum Guidelines  and  Requirements  for 
Accessible  Design,"  which  were  largely 
based  on  the  ANSI  standards.154  Despite 
the  adoption  of  such  standards  and  the 
fact  that  nearly  every  State  has  a  statute 
prohibiting  architectural  barriers,  such 
barriers  continue  to  be  a  serious  prob- 
lem.155 The  extent  of  inaccesibility  was 
illustrated   by   a    1980   study   of  State- 

People,  pp.  71-73.  New  ANSI  standards  were 
published  in  1980,  but  were  not  adopted  by  the 
Federal  standard-setting  agencies.  Ronald  L. 
Mace,  statement,  Consultation,  pp.  282-83. 

154  36  C.F.R.  1190,  47  Fed.  Reg.  33862-93  (Aug.  4, 
1982).  These  have  been  touted  as  the  minimum, 
bottom-line,  accessibility  standard.  Charles  D. 
Goldman,  statement,  Consultation,  p.  336. 

155  "Survey  of  State  Statutes,"  p.  1069;  Barbara 
P.  Ianacone,  "Historical  Overview:  From  Charity 
to  Rights,"  Temp.  L.Q.,  vol.  50  (1977),  p.  958,  n.  33; 
Bowe,  Handicapping  America,  p.  78.  It  has  been 
noted:  "Disabled  people  have  hailed  these  laws 
affecting  new  buildings  with  something  resem- 
bling a  fanfare  of  trumpets.  Designers,  by  and 
large,  have  responded  to  them  with  hostility." 
Raymond  Lifchez  and  Cheryl  Davis,  "What  Ev- 
ery Architect  Should  Know,"  in  Disabled  People 
as  Second-Class  Citizens,  ed.  Myron  G.  Eisenberg, 
Cynthia  Griggins,  and  Richard  J.  Duval  (New 
York:  Springer  Publishing  Co.,  1982)  p.  90. 


38 


owned  buildings  housing  services  and 
programs  available  to  the  general  public. 
The  study  found  76  percent  of  the  build- 
ings physically  inaccessible  and  unus- 
able for  serving  handicapped  persons, 
even  when  taking  into  account  the  op- 
tion of  moving  programs  and  services  to 
other  parts  of  the  buildings  or  otherwise 
restructuring  them.156 

Transportation 

Our  otherwise  mobile  society  frequent- 
ly denies  handicapped  people  access  to 
the  various  means  of  transportation.  The 
Congressional  Budget  Office  has  de- 
scribed the  extent  of  the  problem  with 
regard  to  public  transportation: 


More  than  1  million  physically  dis- 
abled, blind  or  deaf  persons  who  live 
within  a  short  walk  of  transit  service 
cannot  physically  use  it.  .  .  .An  ad- 
ditional 4  million  handicapped  per- 
sons live  near  transit  but  find  it 
difficult  to  use.157 

Architectural  impediments  and  physical 
obstacles,  both  on  the  vehicles  them- 
selves and  at  terminals,  frequently  ren- 
der use  of  transportation  systems  impos- 
sible for  various  groups  of  handicapped 
citizens.158 

In  a  1982  survey  of  public  transporta- 
tion systems,  the  General  Accounting 
Office  found  that  36  percent  of  the  sys- 
tems with  rail  service  did  not  have  a 


156  Noakes  Associates  Architects,  Access  Mary- 
land: Handicapped  Accessibility  Survey  (pre- 
pared under  State  contract)  (1980),  p.  17. 

157  U.S.,  Congressional  Budget  Office,  Urban 
Transportation  for  Handicapped  Persons:  Alter- 
native Federal  Approaches  (Budget  Issue  Paper 
for  FY  1981)  (November  1979),  p.  xi. 

158  "Abroad  in  the  Land,"  p.  1506. 


single  station  accessible  to  wheelchair 
users;  another  36  percent  reported  that 
fewer  than  10  percent  of  their  stations 
were  accessible.  More  than  one-third  of 
the  surveyed  transit  systems  offering  bus 
service  did  not  have  a  single  bus  with  a 
lift  mechanism  to  provide  access  for 
people  in  wheelchairs.  Some  of  these 
transit  systems  offered  paratransit  ser- 
vices— special  demand-responsive  sys- 
tems (such  as  "dial-a-bus"  programs). 
But  84  percent  reported  that,  because  of 
eligibility  criteria  and  limited  resources, 
they  were  periodically  unable  to  comply 
with  requests  for  transportation,  and 
one-third  of  the  systems  maintained 
waiting  lists  of  persons  who  wanted,  but 
were  not  yet  permitted,  to  use  the  para- 
transit service  for  daily  commuting.159 

The  problem  goes  beyond  the  physical 
barriers  to  stations,  boarding  areas,  and 
vehicles.  Some  airlines,  railroads,  and 
bus  companies  reportedly  engage  in 
practices  that  exclude  or  inconvenience 
handicapped  persons.  These  include  re- 
fusing to  transport  people  with  certain 
handicaps,  requiring  personal  atten- 
dants to  accompany  disabled  people  even 
if  they  are  fully  able  to  travel  alone,  and 
denying  passage  to  guide  dogs.160 

Other  Areas 

Handicapped  persons  are  frequently 
denied  other  rights  and  opportunities 
that  nonhandicapped  persons  take  for 

159  U.S.,  General  Accounting  Office,  Status  of 
Special  Efforts  To  Meet  Transportation  Needs  of 
the  Elderly  and  Handicapped  (Apr.  15,  1982),  pp. 
9,  5,  11. 

160  118  Cong.  Rec.  11362-63  (1972)  (statement  of 
Rep.  Vanik);  "History  of  Unequal  Treatment," 
pp.  865-66. 


39 


granted.  These  include  the  right  to 
vote,161  to  hold  public  office,162  and  to 
obtain  a  driver's163  or  a  hunting  and 
fishing  license.164  Many  States  restrict 
the  rights  of  physically  and  mentally 
handicapped  people  to  marry165  and  to 
enter  into  contracts.166  Federal  law 
severely  limits  the  opportunity  of  handi- 
capped aliens  to  visit  or  emigrate  to  the 
United  States.167  Based  on  the  fact  that 
they  are  handicapped,  parents  have  had 
custody  of  their  children  challenged  in 
proceedings  to  terminate  parental 
rights168  and  in  proceedings  growing  out 
of  divorce.169 

A  comprehensive  discussion  of  all  fac- 
ets of  discrimination  against  handi- 
capped persons  is  beyond  the  scope  of 
this  monograph.  To  illustrate  the 
breadth  of  such  discrimination  and  its 
diverse  effect  on  handicapped  people, 
appendix  A  outlines  the  areas  of  discrim- 
ination on  the  basis  of  handicap.  As  this 
brief  discussion  and  the  appendix  dem- 
onstrate,   discriminatory   treatment   of 


161  See  Robert  J.  Funk,  "A  Disenfranchised 
People:  Disabled  Citizens  and  the  Fundamental 
Right  to  Vote,"  in  Law  Reform  in  Disability 
Rights,  vol.  I  (Berkeley:  Disability  Rights  Educa- 
tion and  Defense  Fund,  1981),  pp.  B-l  to  B-21; 
Note,  "Mental  Disability  and  the  Right  to  Vote," 
Yale  L.J.,  vol.  88  (1978),  p.  1644;  Legal  Rights  of 
Handicapped  Persons,  pp.  1033-63. 

162  See  e.g,  In  re  Killeen,  121  Misc.  482,  201 
N.Y.S.  209  (1923);  Legal  Rights  of  Handicapped 
Persons,  pp.  1063-68. 

163  See  e.g,  Ormond  v.  Garrett,  8  N.C.  App.  662, 
175  S.E.  2d  371  (1970);  Strathie  v.  Department  of 
Transp.,  547  F.  Supp.  1367  (E.D.  Pa.  1982); 
Monnier  v.  United  States  Dep't  of  Transp.,  465  F. 
Supp.  718  (E.D.  Wis.  1979). 

164  See,  e.g,  Miss.  Code  Ann.  §49-7-19  (1972). 

165  "History  of  Unequal  Treatment,"  p.  861; 
Legal  Rights  of  Handicapped  Persons,  pp.  918-47, 
and  authorities  cited  therein. 

166  "History  of  Unequal  Treatment,"  pp.  861-62; 


handicapped  people  can  occur  in  almost 
every  aspect  of  their  lives. 

Forms  of  Handicap 
Discrimination 

The  previous  section  described  the 
diverse  areas  in  which  handicap  discrim- 
ination occurs.  A  number  of  commenta- 
tors have  found  the  discrimination  so 
severe  as  to  relegate  handicapped  indi- 
viduals to  "second-class  citizenship."170 
This  section  provides  a  framework  for 
considering  the  forms  that  such  discrimi- 
nation can  take. 

Conduct,  policies,  and  practices  dis- 
criminate against  handicapped  people  in 
several  ways:  intentional  exclusion;  un- 
intentional exclusion;  segregation;  une- 
qual or  inferior  services,  benefits,  or 
activities;  less  effective  services,  benefits, 
or  activities;  and  use  of  screening  criteria 
with  a  disparate  impact  that  do  not 
correlate  with  actual  ability.171 

An  intentional  exclusion  occurs  when 
handicapped  people  are  expressly  prohi- 
bited from  participating  in  some  activity 

Legal  Rights  of  Handicapped  Persons,  pp.  993- 
1014. 

167  8  U.S.C.  §1182  (a)  (1976);  Legal  Rights  of 
Handicapped  Persons,  pp.  1091-94;  "History  of 
Unequal  Treatment,"  p.  862. 

168  See  authorities  cited  in  Legal  Rights  of 
Handicapped  Persons,  pp.  947-92. 

169  See,  e.g.,  In  re  Marriage  of  Carney,  157  Cal. 
Rptr.  383,  598  P.2d  36  (1979);  Moye  v.  Moye,  102 
Idaho  170,  627  P.2d  799  (1981). 

170  Eisenberg,  Griggins,  and  Duval,  Disabled 
People  as  Second-Class  Citizens;  Robert  J.  Funk, 
"Disability  Rights:  From  Caste  to  Class — The 
Humanization  of  Disabled  People,"  in  Law  Re- 
form in  Disability  Rights,  vol.  1  (Berkeley:  Disa- 
bility Rights  Education  and  Defense  Fund,  1981), 
p.  A-5;  Bowe,  Handicapping  America,  p.  x. 

171  These  categories  are  based  in  large  part  upon 
HHS  regulations  dealing  with  discrimination  on 
the  basis  of  handicap.  45  C.F.R.  §84.4(b)  (1982). 


40 


or  are  expressly  denied  a  service.  Exam- 
ples of  such  exclusion  include  policies 
that  prohibit  the  hiring  of  job  applicants 
who  are  blind  or  have  epilepsy,  and 
licensing  agencies'  rules  against  grant- 
ing bus-driving  licenses  to  amputees. 

An  unintentional  exclusion  occurs 
when  handicapped  people  cannot  partici- 
pate in  services,  programs,  and  activities 
because  of  barriers  that  were  not  cons- 
ciously constructed  to  have  such  an  ef- 
fect. Examples  of  barriers  resulting  in 
unintentional  exclusion  include  steps, 
narrow  doorways,  escalators,  and  other 
architectural  barriers  that  prevent  mo- 
bility-impaired individuals  from  enter- 
ing many  buildings  and  facilities,  and 
rules  such  as  those  barring  pets,  which 
exclude  persons  who  rely  on  guide  dogs. 
Although  not  motivated  by  ill  will  or 
conscious  efforts  to  keep  out  handi- 
capped people,  these  barriers  exclude 
just  as  surely  as  deliberate  prohibitions 
do.172 

Segregation  singles  out  handicapped 
people  and  separates  them  from  the  rest 
of  society,  frequently  as  a  condition  for 
receiving  some  service  or  benefit.  In  the 
past,  for  instance,  handicapped  students 
were  often  sent  as  a  group  to  special 
schools  rather  than  being  educated  with 
their  nonhandicapped  peers.  Some  res- 
taurants have  insisted  that  handicapped 
patrons  eat  in  separate  dining  areas  to 
avoid  discomforting  other  customers. 
Mental  health  and  mental  retardation 
institutions  that  house  residents  in  al- 
most complete  isolation  from  the  non- 


172  Unintentional  exclusions  can  also  result  from 
past  discrimination,  as  where  educational  cre- 
dentials or  job  experience  criteria  are  used  to 
exclude  handicapped  people  who  were  discrimi- 
natorily  excluded  from  educational  programs  or 


handicapped  community  are  perhaps  ar- 
chetypal examples  of  segregation. 

Sometimes  handicapped  persons  are 
allowed  to  participate  in  services,  bene- 
fits, and  activities  but  receive  something 
unequal  or  inferior  to  what  nonhandi- 
capped participants  receive.  This  type  of 
discrimination  includes  situations  in 
which  handicapped  workers,  although 
able  to  perform  at  equivalent  levels, 
receive  lower  salaries  or  must  work 
longer  hours  than  their  nonhandicapped 
coworkers,  or  where  handicapped  chil- 
dren attend  schools  with  nonhandi- 
capped children  but  are  relegated  to 
playing  cards  or  board  games  while  the 
others  participate  in  physical  education 
classes. 

In  some  cases,  handicapped  people 
seem  to  have  the  same  opportunities  for 
services,  benefits,  and  activities  as  non- 
handicapped people.  If  handicapped  peo- 
ple cannot  take  full  advantage  of  an 
opportunity,  however,  its  value  and  ef- 
fectiveness are  diminished  for  them.  Al- 
lowing a  deaf  person  to  attend  a  speech 
or  other  oral  presentation  may  appear  to 
be  equal  treatment,  for  instance,  but 
without  an  interpreter  or  some  caption- 
ing process,  the  presentation  may  be  less 
effective  for  the  deaf  person  than  for  the 
rest  of  the  audience.  Similarly,  without 
readers  or  braille  materials,  treating 
blind  students  identically  to  sighted  stu- 
dents by  providing  printed  textbooks  will 
obviously  not  produce  an  equally  effec- 
tive educational  program. 

The  use  of  screening  criteria  with  a 
disparate  effect  that  do  not  correlate 

employment  opportunities  in  the  past.  Cf,  U.S., 
Commission  on  Civil  Rights,  Affirmative  Action 
in  the  1980s:  Dismantling  the  Process  of  Discrimi- 
nation (1981),  pp.  13-14. 


41 


with  actual  ability  is  a  less  common,  but 
still  significant,  form  of  handicap  dis- 
crimination. Handicapped  people  receive 
disproportionately  low  scores  on  some 
tests  and  other  evaluation  measures  and 
standards  simply  because  the  way  the 
tests  are  structured  prevents  people  with 
certain  handicaps  from  demonstrating 
their  knowledge  and  abilities.  Using 
such  tests  and  standards,  without  proper 
adaptation,  as  criteria  for  admission  to 
higher  education  programs  and  employ- 
ment may  screen  out  a  disproportionate 
number  of  learning  disabled  people,  for 
example,  many  of  whom  actually  have 
the  mental  abilities  the  tests  purportedly 
measure.  This  does  not  single  out  and 
exclude  the  class  of  learning  disabled 
persons,  but  it  diminishes  their  chances 
of  being  selected  for  jobs  or  educational 
programs. 

The  various  types  of  handicap  discrim- 
ination occur  in  the  conduct  of  individu- 
als, the  policies  and  practices  of  organi- 
zations and  agencies,  and  the  law.  Where 
discrimination  becomes  habitual  or  is 
formally  adopted,  it  has  a  tendency  to 
become  self-perpetuating.  As  a  result  of 
inertia,  society  may  retain  and  obey 
discriminatory  laws,  rules,  and  practices 
long  after  their  justification  and  ratio- 
nale have  disappeared.173 

Discrimination  in  some  areas  tends  to 
foster  further  discrimination  in  other 
areas.    Inadequate   education    tends    to 


173  Cf.  sections  on  individual  discrimination, 
organizational  discrimination,  and  structural  dis- 
crimination in  U.S.,  Commission  on  Civil  Rights, 
Affirmative  Action  in  the  1980s:  Dismantling  the 
Process  of  Discrimination,  pp.  8-13. 

174  American  Bar  Association,  Developmental 
Disabilities  State  Legislative  Project,  Eliminat- 
ing Environmental  Barriers  (August  1979)  (re- 
printed by  U.S.  Architectural  and  Transporta- 
tion Barriers  Compliance  Board),  p.  1. 


restrict  employment  opportunities,  re- 
sulting in  a  lowered  economic  status, 
which,  in  turn,  limits  housing  choices. 
Similarly,  lack  of  access  to  transporta- 
tion systems  restricts  employment,  edu- 
cation, housing,  and  recreational  oppor- 
tunities.174 Discrimination  in  one  area 
frequently  results  in  a  denial  of  options 
in  other  areas.  As  the  Commission  has 
noted  in  other  contexts,  "Discrimination 
can  feed  on  discrimination  in  self-perpe- 
tuating cycles."175 

Changing  Discriminatory 
Practices  and  Prejudiced 
Attitudes 

Remedying  the  problem  of  handicap 
discrimination  involves  two  important 
elements:176  ending  discriminatory  con- 
duct and  reducing  prejudice.  The  next 
chapter  describes  some  of  the  laws  enact- 
ed to  prohibit  discrimination  against 
handicapped  people  and  to  promote 
equality  for  them  in  American  society. 
Legal  tradition  and  history  in  the  United 
States  suggest  that  the  law  can  help 
mold  people's  conduct  and  eradicate  pro- 
scribed behavior.  There  is  hope  that 
strong  laws,  vigorously  enforced,  can 
dispel  practices  of  discrimination  on  the 
basis  of  handicaps. 

Addressing  discriminatory  practices, 
however,  is  only  part  of  the  challenge. 
Discrimination  is  rooted  in  widespread 
prejudice   against   handicapped   people, 

175  U.S.,  Commission  on  Civil  Rights,  Affirma- 
tive Action  in  the  1980s:  Dismantling  the  Process 
of  Discrimination,  p.  11;  see  also  U.S.,  Commis- 
sion on  Civil  Rights,  For  All  the  People.  .  .By  All 
the  People  (1969),  p.  122,  and  Equal  Opportunity 
in  Suburbia  (1974),  pp.  9-15. 

176  The  two-pronged  analysis  presented  here  is 
outlined  in  Gittler,  "Fair  Employment  and  the 
Handicapped:  A  Legal  Perspective,"  pp.  986-87. 


42 


and  these  attitudes  also  require  atten- 
tion. Because  discriminatory  practices 
and  prejudices  are  closely  intertwined, 
an  effective  remedy  of  the  former  must 
incorporate  a  remedy  for  the  latter. 

Despite  the  pervasiveness  of  prejudice 
against  handicapped  persons,  there  are 
indications  that  people  may  be  receptive 
to  changing  their  attitudes  about  handi- 
caps. Studies  suggest  that  increased  posi- 
tive interaction  with  handicapped  people 
reduces  fears  and  discomfort  and  leads  to 
better  acceptance  of  handicapped  peo- 
ple.177 The  prejudice  that  results  from 
simple  ignorance  and  lack  of  familiarity 
with  handicapped  people  is  thus  suscep- 
tible to  change: 


persons  in  America  today  can  be 
made  more  positive.178 

It  has  been  argued  that  prejudice  based 
upon  lack  of  knowledge  is  less  en- 
trenched and  easier  to  change  than  atti- 
tudes based  upon  familiarity  and  experi- 
ence: 


Attitudes  based  upon  extensive  con- 
tact and  detailed  information  are 
resistant  to  change.  But  the  evidence 
is  that  few  Americans  have  had 
either  wide-ranging  contacts  with  or 
accurate  information  about  disabled 
people.  And  this  is  why  there  is 
cause  for  optimism.179 


Attitudes  toward  disability  are  often 
negative  because  we  fear  disabilities, 
we  don't  understand  them,  and  we 
feel  uncomfortable  in  situations 
where  we  experience  fear  and  uncer- 
tainty. Yet  these  problems  can  be 
overcome.  Fear  can  be  allayed  by 
offering  information  that  makes  dis- 
abilities comprehensible,  and  uncer- 
tainties can  be  reduced  by  helping 
people  understand  what  they  should 
and  should  not  do  when  they  are 
with  disabled  individuals.  Because 
most  Americans  have  little  direct, 
personal  experience  with  disabilities 
and  little  knowledge  about  them,  it 
is  possible  that  the  attitudes  of  many 


177  See  authorities  cited  in  Hull,  The  Rights  of 
Physically  Handicapped  People,  pp.  33,  41,  n.  8. 

178  Bowe,  Handicapping  America,  p.  119. 

179  Ibid.,  p.  114. 

i8o  William  A.  Anthony,  "Societal  Rehabilita- 
tion: Changing  Society's  Attitudes  Toward  the 
Physically  and  Mentally  Disabled,"  in  Social  and 
Psychological  Aspects  of  Disability,  ed.  Joseph 
Stubbins  (Baltimore:  University  Park  Press, 
1977),  p.  270  (hereafter  cited  as  "Societal  Rehabil- 


The  two  major  avenues  for  changing 
such  attitudes  are  through  (1)  increasing 
social  contact  and  interaction  of  nonhan- 
dicapped  and  handicapped  people  and  (2) 
providing  nonhandicapped  people  with 
accurate  information  about  handicapped 
people.180 

It  is  generally  believed  that  social 
interaction  between  handicapped  and 
nonhandicapped  people  automatically 
improves  attitudes  toward  handicaps.181 
Research  has  indicated,  however,  that 
contact,  per  se,  is  not  uniformly  effective 
at  instilling  favorable  attitudes.182  Over- 
all, it  is  true  that  those  who  have  some 
contact  with  handicapped  people  tend  to 

itation");  Schroedel,  Attitudes  Toward  Persons 
With  Disabilities:  A  Compendium  of  Related 
Literature,  p.  61. 

181  Schroedel,  Attitudes  Toward  Persons  With 
Disabilities:  A  Compendium  of  Related  Litera- 
ture, p.  60;  Bowe,  Handicapping  America,  p.  112. 

182  "Societal  Rehabilitation,"  pp.  270-72,  and 
authorities  cited  therein;  Schroedel,  Attitudes 
Toward  Persons  With  Disabilities:  A  Compendi- 
um of  Related  Literature,  pp.  60-61. 


43 


have  slightly  more  favorable  attitudes 
than  those  who  have  no  contact  at  all,183 
but  the  effect  that  contact  has  on  atti- 
tudes largely  depends  on  its  type  and 
context.  Quality  rather  than  quantity  of 
social  contact  seems  to  be  more  impor- 
tant in  improving  attitudes.  Situations  in 
which  handicapped  people  hold  subordi- 
nate positions  or  are  seen  as  helpless  and 
dependent  foster  unfavorable  atti- 
tudes.184 "If  we  see  blind  beggars  rather 
than  blind  lawyers,  our  attitudes  are 
more  likely  to  be  negative."185  Studies 
have  shown  that  in  some  circumstances 
interaction  with  handicapped  persons 
can  actually  lead  to  slightly  more  nega- 
tive attitudes.186  Contact  with  handi- 
capped persons  in  medical  or  institution- 
al settings,  for  example,  appears  not  to 
engender  the  positive  attitudes  that  in- 
teraction in  social  or  employment  set- 
tings does.187 

Attempts  to  eradicate  prejudicial  atti- 
tudes by  providing  nonhandicapped  peo- 
ple with  accurate  information  about 
handicapped  persons  can  take  a  number 
of  different  forms,  including  books,  films, 
lectures  or  discussions,  television  and 
radio  campaigns,  training  programs,  role 
playing,  academic  courses,  and  even  the 
educational  effects  of  legislative  enact- 
ments.188 By  themselves,  however,  it  is 
doubtful  that  such  efforts  can  change 
attitudes: 


183  "Societal  Rehabilitation,"  pp.  270-71. 

184  Schroedel,  Attitudes  Toward  Persons  With 
Disabilities:  A  Compendium  of  Related  Litera- 
ture, p.  60. 

185  Bowe,  Handicapping  America,  p.  114. 

186  "Societal  Rehabilitation,"  p.  270;  Schroedel, 
Attitudes  Toward  Persons  With  Disabilities:  A 
Compendium  of  Related  Literature,  p.  60. 

is?  White  House  Conference  on  Handicapped 
Individuals,  Social  Concerns:  State  White  House 
Conference  Workbook  (1976),  p.  21;  English,  "Cor- 


General  agreement  seems  to  exist  in 
the  literature  that  regardless  of  the 
way  in  which  the  information  is 
presented,  the  power  of  information 
alone  to  produce  positive  attitude 
change  is  negligible.189 

Even  where  a  person's  knowledge  about 
disabled  people  is  demonstrably  in- 
creased, this  increased  knowledge  does 
not  appear  necessarily  to  carry  over  to  a 
more  favorable  attitude.190 

Although  neither  contact  nor  informa- 
tion alone  is  uniformly  effective  in  im- 
proving attitudes  toward  handicapped 
people,  the  combination  of  these  two 
approaches  has  a  significant  effect  upon 
nonhandicapped  people's  attitudes.  One 
review  of  the  research  literature  has 
concluded: 


The  findings  of  these  studies  appear 
to  be  remarkably  consistent:  Regard- 
less of  the  type  of  disability  studied, 
and  seemingly  independent  of  the 
type  of  contact  and  information  ex- 
perience provided,  all  studies  report- 
ed that  a  contact-plus-information 
experience  had  a  favorable  impact 
on  the  nondisabled  person's  atti- 
tudes.191 

relates  of  Stigma  Towards  Physically  Disabled 
Persons,"  p.  220. 

188  See,  e.g.,  Safilios-Rothschild,  "Prejudice 
Against  the  Disabled  and  Some  Means  to  Combat 
It,"  pp.  266-67;  Schroedel,  Attitudes  Toward 
Persons  With  Disabilities:  A  Compendium  of 
Related  Literature,  pp.  16-19;  "Societal  Rehabili- 
tation," p.  272. 

189  "Societal  Rehabilitation,"  p.  272. 

190  Ibid.,  p.  273. 

191  Ibid. 


44 


Thus,  the  opportunity  to  associate  with      significantly   improve   attitudes  toward 
handicapped  people,  when  coupled  with      them, 
information  about  their  disabilities,  can 


45 


Chapter  3 

Federal  Civil  Rights  Law  and  Handicapped  Persons 


This  chapter  summarizes  the  existing 
legal  framework  governing  discrimina- 
tion against  handicapped  people.  Be- 
cause the  core  concept  of  reasonable 
accommodation,  discussed  briefly  here 
and  in  depth  in  chapter  6,  rests  upon  this 
legal  foundation,  this  chapter  provides 
the  context  within  which  to  understand 
reasonable  accommodation. 

Numerous  State  and  Federal  laws  pro- 
hibit discrimination  against  handicapped 
persons.  The  diversity  and  vast  numbers 
of  State  laws  make  summarizing  them 


1  The  States  have  taken  a  variety  of  approaches 
in  prohibiting  discrimination  on  the  basis  of 
handicap.  Some  States'  antidiscrimination  stat- 
utes include  handicap  as  an  additional  category 
of  prohibited  discrimination.  See,  e.g.,  Ohio  Rev. 
Code  Ann.  §4112.02  (Page  Supp.  1981);  Kan.  Stat. 
Ann.  §44-1001  (1981). 

Frequently,  such  laws  are  enforced  by  State  civil 
rights  commissions  and  similar  enforcement 
agencies.  See,  e.g.,  Ind.  Code  Ann.  §22-9-1-6 
(Burns  Supp.  1982);  Kan.  Stat.  Ann.  §44-1001 
(1981);  Mich.  Comp.  Laws  Ann.  §37.1102-.  1103 
(West  Supp.  1982-83);  Alaska  Stat.  §18.80.060(6) 
(Supp.  1980);  Minn.  Stat.  Ann.  §363.04  (West 
Supp.  1982). 

Some  States  have  passed  laws  prohibiting  handi- 
cap discrimination  in  certain  specific  areas,  such 
as  employment  or  housing.  See,  e.g.,  Iowa  Code 
Ann.  §§601A.6  and  601A.8  (West  1975  &  Supp. 
1982-83);   Minn.   Stat.  Ann.   §363.03.1-.2  (West 


difficult.1  Moreover,  almost  30  Federal 
laws  prohibit  discrimination  against 
handicapped  people.2  Most  of  these  laws 
originated  in  the  early  1970s  when  hand- 
icapped people  sought  protections  simi- 
lar to  those  the  civil  rights  movement 
had  secured  for  racial  and  ethnic  minori- 
ties and  women.  Consequently,  this  chap- 
ter focuses  on  four  key  Federal  statutes 
with  broad  civil  rights  provisions  and 
objectives  for  handicapped  people:3    the 


Supp.  1982);  N.J.  Stat.  Ann.  §10.5-4.1  (West 
Supp.  1982-83);  R.I.  Gen.  Laws  §28-5-5  (1979). 
Nearly  all  of  the  States  have  enacted  statutes 
restricting  or  prohibiting  architectural  barriers. 
See,  e.g,  Me.  Rev.  Stat.  Ann.  tit.  25  §§2701-2704 
(Supp.  1982-83);  S.D.  Codified  Laws  Ann.  §5-14- 
12  (1980);  VT.  Stat.  Ann.  tit.  18,  §1322  (Supp. 
1981). 

In  addition,  a  few  States  have  passed  constitu- 
tional amendments  prohibiting  certain  types  of 
discrimination  against  handicapped  persons.  See, 
e.g.,  111.  Const,  art.  I,  §19  (prohibits  discrimina- 
tion based  on  physical  or  mental  handicap  in 
employment  and  in  the  sale  or  rental  of  proper- 
ty); Fla.  Const,  art.  1,  §2  (prohibits  deprivation  of 
any  right  because  of  a  physical  handicap). 

2  Seeapp.  B. 

3  In  addition  to  prohibiting  discrimination  on 
the  basis  of  handicap,  many  of  these  statutes  also 
create  programs  delivering  services,  education, 


46 


Rehabilitation  Act  of  1973,  as  amended;4 
the  Education  for  All  Handicapped  Chil- 
dren Act  of  1975;5  the  Architectural 
Barriers  Act  of  1968,  as  amended;6  and 
the  Developmental  Disabilities  Assis- 
tance and  Bill  of  Rights  Act,  as  amend- 
ed.7 Federal  constitutional  guarantees  of 
equal  protection  of  the  law  and  of  due 
process  of  law  also  prohibit  some  kinds  of 
discrimination  against  handicapped  peo- 
ple. 

Rehabilitation  Act  of  1973 

The  Rehabilitation  Act  of  1973,8  as 
amended  in  1978,9  was  a  significant  step 
in  implementing  a  national  policy  to 
integrate  handicapped  people  into  Amer- 
ican society.10  The  statute  combines  a 
comprehensive    Federal-State    program 

and  training  to  handicapped  people.  Congress 
considered  both  nondiscrimination  and  the  provi- 
sion of  various  services  essential  for  achieving 
the  full  participation  of  handicapped  people  in 
society.  The  national  policy  objective  of  full 
participation  is  discussed  in  chap.  4. 
*   29  U.S.C.  §§701-796i  (1976  &  Supp.  V  1981). 

5  20  U.S.C. §§1232,  1400,  1405-1420,  1453  (1976  & 
Supp.  V  1981). 

6  42  U.S.C.  §§4151-4157  (1976). 

7  42  U.S.C.  §§6000-6081  (1976  and  Supp.  V  1981). 

8  The  Rehabilitation  Act  of  1973,  Pub.  L.  No.  93- 
112,  87  Stat.  355.  The  act  is  the  product  of  a 
legislative  compromise  between  the  Nixon  ad- 
ministration and  Congress  to  extend  the  existing 
Federal-State  vocational  rehabilitation  system. 
On  October  26,  1972,  President  Nixon  refused  to 
sign  and  thereby  effectively  vetoed  the  Rehabili- 
tation Act  of  1972  because  he  believed  it  diverted 
the  program  from  its  vocational  objective  into 
medical  and  social  welfare  policies,  added  a 
variety  of  new  categorical  programs,  and  was 
extremely  costly.  "Memorandum  of  Disapproval 
of  Nine  Bills,"  Public  Papers  of  the  Presidents: 
Richard  M.  Nixon,  pp.  1042,  1045  (Oct.  27,  1972). 
Five  months  later,  the  President  vetoed  S.7,  a  bill 
that  tracked  the  major  provisions  of  the  earlier 
legislation  he  had  previously  refused  to  sign. 
"Veto  of  the  Vocational  Rehabilitation  Bill," 
Public  Papers  of  the  Presidents,  p.  223  (March  27, 
1973).  The  President  and  Congress  worked  out  a 


providing  handicapped  people  a  wide 
variety  of  rehabilitation  services  with 
broadly  worded  civil  rights  protections 
against  discrimination.  It  is  intended  to 
increase  employment  skills  and  ability  to 
live  independently  in  the  community 
without  the  fruits  of  these  programs 
being  frustrated  by  discrimination.11  In 
particular,  the  act  prohibits  discrimina- 
tion against  handicapped  people  by  re- 
cipients of  Federal  funds,12  the  Federal 
Government  itself,13  and  Federal  con- 
tractors.14 

Several  titles  of  the  act  are  particular- 
ly significant  in  promoting  its  purposes. 
Title  I  sets  up  the  basic  vocational  reha- 
bilitation program  under  which  handi- 
capped people15  may  receive  evaluation 
and   diagnostic   services,   medical   care, 

compromise  bill  that  was  signed  into  law  on 
September  26,  1973.  The  compromise  reduced  the 
funding  levels  proposed  in  the  vetoed  versions; 
required  that  the  act  give  equal,  not  priority 
service  to  the  severely  handicapped;  and  elimi- 
nated several  proposed  new  programs  and  Feder- 
al bodies.  For  a  discussion  of  the  changes  made 
see  S.  Rep.  No.  318,  93d  Cong.,  1st  Sess.,  reprinted 
in  1973  U.S.  Code  Cong.  &  Ad.  News  2076,  2079- 
2082.  The  civil  rights  provisions  in  Title  V,  as 
well  as  the  basic  services  to  be  provided,  re- 
mained untouched. 

9  Rehabilitation,  Comprehensive  Services,  and 
Developmental  Disabilities  Amendments  of  1978, 
Pub.  L.  No.  95-602,  tit.  I,  92  Stat.  2955  (codified  in 
scattered  sections  of  29  U.S.C). 

10  For  a  discussion  of  the  national  policy  of  full 
participation,  see  chap.  4. 

11  "The  purpose  of  this  chapter  is  to  develop  and 
implement,  through  research,  training,  services, 
and  the  guarantee  of  equal  opportunity,  compre- 
hensive and  coordinated  programs  of  vocational 
rehabilitation  and  independent  living."  29  U.S.C. 
§701  (Supp.  V  1981).  See  also  H.  Rep.  No.  95-1149, 
95th  Cong.,  2d  Sess.  1-2,  reprinted  in  1978  U.S. 
Code  Cong.  &  Ad.  News  7312-13. 

12  29  U.S.C.  §794  (Supp.  V  1981). 

13  Id. 

14  29  U.S.C.  §793  (1976  &  Supp.  V  1981). 

15  The  Rehabilitation  Act  uses  two  different 


47 


counseling,  training,  and  prosthetic  de- 
vices or  other  technological  aids.16  These 
services  are  provided  by  local  agencies17 
or  private  organizations  under  contract 
or  subgrant  with  the  State.18  The  act 
requires  rehabilitation  counselors  and 
their  clients  jointly  to  develop  individu- 
alized, written,  rehabilitation  programs 
that  must  be  reviewed  annually.  The 
programs  must  set  long  range  and  inter- 
mediate goals  and  specify  the  services 
and  aids  to  be  supplied.19 

Title  VII  of  the  Rehabilitation  Act  uses 
supplementary  grants  to  the  States  to 
establish  a  program  for  "comprehensive 
services  for  independent  living  designed 
to  meet  the  current  and  future  needs  of 
individuals  whose  disabilities  are  so  se- 
vere that  they  do  not  presently  have  the 

definitions  of  handicapped  individual.  The  first 
definition  applies  to  programs  of  vocational  reha- 
bilitation (and  all  titles  of  the  act  except  Titles  IV 
and  V).  To  be  eligible  for  vocational  services,  an 
individual  must  have  a  physical  or  mental  disa- 
bility that  for  such  individual  constitutes  a 
substantial  handicap  to  employment  and  reason- 
ably be  expected  to  benefit  in  terms  of  employa- 
bility  from  vocational  rehabilitation.  29  U.S.C. 
§706(7)(A)  (Supp.  V  1981).  The  second  definition 
applies  to  Titles  IV  and  V  of  the  law,  including 
their  prohibitions  against  discrimination.  Under 
this  definition,  a  person  is  handicapped  if  he  or 
she  has  a  physical  or  mental  impairment  that 
substantially  limits  one  or  more  major  life  activi- 
ties, or  has  a  record  of  such  an  impairment,  or  is 
regarded  as  having  such  an  impairment.  Id. 
§706(7)(B).  Definitions  of  the  term  handicap  are 
discussed  in  chap.  1  in  the  section  entitled 
"Defining  Handicaps." 

16  29  U.S.C.  §723(a)  (1976  &  Supp.  V  1981).  Title 
II  provides  funding  for  research  and  establishes 
the  National  Institute  of  Handicapped  Research 
and  the  Interagency  Committee  on  Handicapped 
Research.  Id.  §§760-762a.  Title  III  establishes 
funding  for  construction  and  training  programs 
and  supplementary  services  such  as  interpreters 
for  the  deaf  and  readers  for  the  blind.  Id.  §§770- 
777f.  Title  IV  establishes  the  National  Council  on 
the  Handicapped  to  evaluate  programs  and  ser- 


potential  for  employment  but  may  bene- 
fit from  vocational  rehabilitation  ser- 
vices which  will  enable  them  to  live  and 
function  independently."20  The  services 
the  act  funds  in  support  of  community 
living  are  extremely  broad,  including 
counseling,  job  placement,  housing  and 
funds  for  making  housing  physically 
accessible,  funds  for  prosthetic  devices, 
transportation,  health  maintenance,  at- 
tendant care,  and  recreational  activi- 
ties.21 This  section  of  the  act  also  funds 
Federal  efforts  to  establish  and  support 
centers  to  help  handicapped  people  live 
independently  in  their  communities.  The 
centers  are  staffed  primarily  by  handi- 
capped people  and  provide  a  wide  variety 
of  services  and  referrals.22 

vices  for  the  handicapped  and  to  make  recom- 
mendations for  improvements.  29  U.S.C.  §§780- 
785  (Supp.  V  1981).  Title  V  contains  nondiscrimi- 
nation provisions  discussed  in  detail  below.  29 
U.S.C.  §§791-794c  (1976  &  Supp.  V  1981).  Title  VI 
establishes  a  community  services  pilot  employ- 
ment program  and  a  projects  with  industry 
program  designed  to  give  handicapped  persons 
training  and  employment  to  prepare  them  for 
the  competitive  employment  market.  29  U.S.C. 
§§795-795i  (Supp.  V  1981).  Title  VII,  described 
above,  funds  comprehensive  programs  for  inde- 
pendent living.  Id.  §§796-796i. 

17  34  C.F.R.  §361.1(1982). 

18  34  C.F.R.  §§361.9(a)(5),  361.24(b);  id.  pt.  369 
(1982). 

19  29  U.S.C.  §§721(a)(9),  722(a)-(b)  (Supp.  V 
1981). 

20  Id.  §796. 

21  Id.  §796a(b). 

22  Id.  §796e(c)(l)-(2).  Such  services  include: 
counseling  and  training  in  independent  living 
skills,  counseling  and  legal  advocacy  with  respect 
to  legal  rights  and  economic  benefits,  community 
group  living  arrangements,  education  and  train- 
ing needed  for  community  living,  individual  and 
group  social  and  recreational  activities,  and 
attendant  care  and  training  of  such  personnel 
and  health  maintenance  programs. 


48 


Title  V  of  the  act  establishes  as  nation- 
al policy  the  protection  of  the  civil  rights 
of  handicapped  people.  Senator  Taft  (R- 
Ohio),  a  sponsor  of  the  Rehabilitation 
Act  of  1973,  speaking  in  support  of  the 
act,  declared: 


Too  many  handicapped  Americans 
are  not  served  at  all,  too  many  lack 
jobs,  and  too  many  are  underem- 
ployed— utilized  in  capacities  well 
below  the  levels  of  their  training, 
education,  and  ability.  .  .  .[I]f  we 
are  to  assure  that  all  handicapped 
persons  may  participate  fully  in  the 
rewards  made  possible  by  the  voca- 
tional rehabilitation  program,  we 
must  devote  more  of  our  energy 
toward  elimination  of  the  most  disg- 
raceful barrier  of  all — discrimina- 
tion.23 


■  119  Cong.  Rec.  24,587(1973). 
24  For  example,  Title  VII  of  the  Civil  Rights  Act 
of  1964,  which  prohibits  employment  discrimina- 
tion on  the  basis  of  race,  color,  religion,  sex,  and 
national  origin,  covers  most  employers  and  em- 
ployees in  the  private  sector,  State  and  local 
government,  and  the  Federal  executive  branch. 
42  U.S.C  §§2000e,  2000e-2,  2000e-16  (1976  & 
Supp.  V  1981).  Handicapped  Americans  are  pro- 
tected from  employment  discrimination  only  if 
their  employer  receives  some  form  of  Federal 
financial  assistance,  has  a  Federal  contract,  or  is 
the  Federal  Government  itself.  29  U.S.C.  §§791, 
793-794  (1976  &  Supp.  V  1981).  The  1866  and 
1870  Civil  Rights  Acts  protect  all  persons  from 
discrimination  based  on  race  or  color  in  any 
contract  or  the  sale  or  purchase  of  land.  42  U.S.C. 
§§1981-1982  (1976).  Title  VIII  of  the  Civil  Rights 
Act  of  1968  prohibits  housing  discrimination  on 
the  basis  of  race,  color,  national  origin,  and  sex. 
42  U.S.C.  §3604  (1976).  There  are  no  analogous 
protections  for  handicapped  persons  in  the  sale 
or  rental  of  real  property  or  in  the  making  of 
contracts.  Handicapped  persons  are  protected 
from  similar  acts  of  discrimination  only  if  the 


Although  the  protections  against 
handicap  discrimination  are  not  as 
sweeping  as  those  prohibiting  race  and 
sex  discrimination,24  the  three  key  pro- 
visions in  Title  V  do  provide  significant 
protection.  Of  these  provisions,  section 
50425  has  generated  both  the  greatest 
number  of  regulations  and  the  most 
litigation.  Section  504  of  the  Rehabilita- 
tion Act  states,  in  part: 


No  otherwise  qualified  handicapped 
individual  in  the  United 
States.  .  .shall,  solely  by  reason  of 
his  handicap,  be  excluded  from  par- 
ticipation in,  be  denied  the  benefits 
of,  or  be  subjected  to  discrimination 
under  any  program  or  activity  re- 
ceiving Federal  financial  assistance 
or  under  any  program  or  activity 
conducted  by  any  Executive  agency 
or  by  the  United  States  Postal  Ser- 


vice. 


26 


housing  is  federally  financed  or  built.  29  U.S.C. 
§794  (Supp.  V  1981);  see  also  42  U.S.C.  4151-4157 
(1976). 

25  29  U.S.C.  §794  (Supp.  V  1981). 

26  Id.  This  language  parallels  a  similar  provision 
in  Title  VI  of  the  Civil  Rights  Act  of  1964,  which 
bans  discrimination  on  the  basis  of  race,  color  or 
national  origin.  42  U.S.C.  §2000d  (1976).  Title  VI, 
however,  does  not  reach  discriminatory  practices 
of  the  Federal  executive  agencies  or  the  U.S. 
Postal  Service  that  do  not  constitute  Federal 
financial  asistance.  Title  IX  of  the  Education 
Amendments  of  1972,  20  U.S.C.  §1681  (1976),  uses 
similar  language  in  prohibiting  sex  discrimina- 
tion in  educational  institutions  receiving  Federal 
financial  assistance.  Id.  §  1681(a).  Congress  relied 
on  its  previous  experience  in  enacting  civil  rights 
legislation  when  it  passed  §504  of  the  Rehabilita- 
tion Act.  See,  e.g.,  S.  Rep.  No.  1297,  93d  Cong.,  2d 
Sess.,  reprinted  in  1974  U.S.  Code  Cong.  &  Ad. 
News  6373,  6390;  NAACP  v.  Medical  Center,  Inc., 
599  F.2d  1247,  1258  (3d  Cir.  1979).  The  origins  of 
§504  probably  lie  in  unsuccessful  proposals  to 
amend  Titles  VI  and  VII  of  the  Civil  Rights  Act 
of  1964  to  include  prohibitions  of  discrimination 


49 


By  its  terms  section  504  prohibits  dis- 
crimination on  the  basis  of  handicap  in 
any  program  or  activity27  receiving 
Federal  financial  assistance28    and  also 


reaches  discriminatory  practices  of  the 
Federal  Government.29  This  prohibition 
extends  to  all  areas  in  which  Federal 
financial  assistance  is  provided,  includ- 


against  the  handicapped.  Note,  "Accommodating 
the  Handicapped:  Section  504  After  Southeast- 
ern," 80  Colo.  L.  Rev.  171,  174,  n.  19  (1980),  citing 
H.R.  12154,  92d  Cong.,  1st  Sess.,  117  Cong.  Rec. 
45,945  (1971);  H.R.  14033,  92d  Cong.,  2d  Sess.,  118 
Cong.  Rec.  9712  (1972);  S.  3044,  92d  Cong.,  2d 
Sess.,  118  Cong.  Rec.  525  (1972).  See  also  Garrity 
v.  Galen,  522  F.  Supp.  171,  205  (D.N.H.  1981). 
Congress  also  amended  the  Rehabilitation  Act  in 
1978  to  provide  that  the  "remedies,  procedures 
and  rights"  under  Title  VI  should  apply  to  cases 
brought  under  §504.  Rehabilitation,  Comprehen- 
sive Services,  and  Developmental  Disabilities 
Amendments  of  1978,  Pub.  L.  No.  95-602, 
§505(a)(2),  92  Stat.  2955,  2983  (codified  at  29 
U.S.C.  §794a(a)(2)  (Supp.  V  1981). 
27  The  Supreme  Court  has  ruled  that  the  identi- 
cal language  in  Title  IX  of  the  Education  Amend- 
ments of  1972  (prohibiting  sex  discrimination  in 
educational  programs  or  activities  receiving  Fed- 
eral financial  assistance)  renders  that  statute 
"program  specific,"  that  is,  the  act  reaches  only 
those  parts  of  a  recipient's  programs  or  activities 
that  "receive"  Federal  aid.  North  Haven  Bd.  of 
Educ.  v.  Bell,  456  U.S.  512,  535-40  (1982).  The 
Court,  however,  did  not  define  "program  or 
activity"  or  decide  whether  or  when  such  pro- 
grams or  activities  "receive"  Federal  money.  Id. 
at  1927.  Federal  regulations  have  interpreted 
these  phrases  broadly  in  light  of  the  remedial 
purposes  of  the  statute,  so  that  any  recipient's 
programs  receiving  or  benefiting  from  Federal 
financial  assistance  are  covered  by  the  act.  28 


C.F.R.  §41. 3(d)  (1982).  The  Reagan  administra- 
tion has  indicated  its  support  for  a  far  narrower 
interpretation  by  endorsing  a  district  court  opin- 
ion that  would  restrict  Title  IX  coverage  to 
programs  and  activities  that  directly  receive 
Federal  funds  specifically  earmarked  for  them. 
William  Bradford  Reynolds,  Assistant  Attorney 
General,  Civil  Rights  Division,  Department  of 
Justice,  letter  to  Clarence  Pendleton,  Chairman, 
U.S.  Commission  on  Civil  Rights,  Sept.  16,  1982, 
endorsing  University  of  Richmond  v.  Bell,  543  F. 
Supp.  321  (E.D.  Va.  1982).  Also  compare,  e.g., 
Grove  City  College  v.  Bell,  687  F.2d  684  (3d  Cir. 
1982),  cert,  granted,  103  S.Ct.  1185  (1983)  with 
Rice  v.  President  and  Fellows  of  Harvard  College, 
663  F.2d  336  (1st  Cir.  1981),  cert,  denied,  456  U.S. 
928  (1982). 

28  Not  all  federally  conferred  benefits  constitute 
Federal  financial  assistance.  Gottfried  v.  F.C.C., 
655  F.2d  297,  312-314  (D.C.  Cir.  1981),  rev'd  on 
other  grounds,  103  S.Ct.  885  (1983)  (Federal 
commercial  television  licenses  issued  by  FCC  do 
not  constitute  Federal  financial  assistance). 

29  29  U.S.C.  §794  (Supp.  V  1981).  The  prohibition 
contained  in  this  section  against  discrimination 
on  the  basis  of  handicap  in  activities  conducted 
by  executive  agencies  or  the  U.S.  Postal  Service 
was  added  by  the  Rehabilitation,  Comprehensive 
Services,  and  Developmental  Disabilities  Act  of 
1978.  Pub.  L.  No.  95-602,  §119(2),  92  Stat.  2955, 
2982. 


50 


ing,  but  not  limited  to,  employment,30 
education,  housing,  transportation,  and 
health  and  human  services.31  Because 
section  504  is  enforced  by  all  agencies 
that  disburse  Federal  funds,  the  Presi- 
dent has  assigned  the  Department  of 
Justice  to  coordinate  enforcement  activi- 
ties.32 The  Department  of  Justice's  sec- 
tion 504  coordinating  guidelines,  origi- 
nally issued  by  the  U.S.  Department  of 
Health,  Education  and  Welfare,33  set  the 
minimum  requirements  to  be  followed  by 


30  Government-wide  regulations  subject  employ- 
ment practices  to  the  handicap  discrimination 
prohibition.  28  C.F.R.  §41.52-.55.  In  North  Haven 
v.  Bell,  456  U.S.  512,  520-35  (1982),  the  U.S. 
Supreme  Court  ruled  that  Title  IX  of  the  Educa- 
tion Amendments  of  1972,  which  prohibits  dis- 
crimination on  the  basis  of  sex  and  which  uses 
language  similar  to  §504,  applies  to  employment. 
Prior  to  this  decision,  four  courts  of  appeal  held 
that  §504  applies  only  to  employment  discrimina- 
tion where  providing  employment  is  a  primary 
objective  of  the  Federal  aid  or  where  discrimina- 
tion in  employment  necessarily  causes  discrimi- 
nation against  the  primary  beneficiaries  of  the 
Federal  aid.  United  States  v.  Cabrini  Medical 
Center,  639  F.2d  908  (2d  Cir.  1981);  Carmi  v. 
Metropolitan  St.  Louis  Sewer  Dist.,  620  F.2d  672 
(8th  Cir.),  cert,  denied,  449  U.S.  892  (1980); 
Trageser  v.  Libbie  Rehabilitation  Center,  Inc., 
590  F.2d  87  (4th  Cir.  1978),  cert,  denied,  442  U.S. 
947  (1979);  Scanlon  v.  Atascadero  State  Hosp., 
677  F.2d  1271  (9th  Cir.  1982).  Two  courts  of 
appeal's  decisions  rendered  after  North  Haven — 
one  of  which  the  Supreme  Court  has  decided  to 
review — have  gone  the  other  way,  holding  that 
employment  is  covered  regardless  of  the  purpose 
of  the  Federal  funds  received.  Le  Strange  v. 
Consolidated  Rail  Corp.,  687  F.2d  767  (3rd  Cir. 
1982),  cert,  granted,  103  S.Ct.  1181  (1983);  Jones  v. 
Metropolitan  Atlanta  Rapid  Transit  Auth.,  681 
F.2d  1376  (11th  Cir.  1982),  petition  for  cert,  filed, 
51  U.S.L.W.  3535  (U.S.  Jan.  11,  1983)  (no.  82- 
1159). 

31  See  28  C.F.R.  pt.  41  (1982). 

32  Exec.  Order  No.  12,250,  3  C.F.R.  298  (1980 
Comp.). 

33  The  responsibility  for  coordinating  the  imple- 
mentation of  §504  has  changed.  President  Ford 


all  Federal  agencies  and  departments  in 
issuing  their  own  regulations  and  enforc- 
ing section  504  by  administrative  ac- 
tion.34 Section  504  can  also  be  enforced 
by  aggrieved  handicapped  persons 
through  lawsuits.35 

The    government-wide    section    504 
guidelines  define  discrimination  broadly 


issued  Exec.  Order  No.  11,914,  3  C.F.R.  177  (1977 
Comp.)  authorizing  the  Department  of  Health, 
Education,  and  Welfare  (HEW)  to  coordinate 
enforcement  of  §504  for  federally  assisted  pro- 
grams. President  Carter  transferred  this  authori- 
ty first  to  the  Department  of  Health  and  Human 
Services  (HHS)  and  then,  in  November  1980,  to 
the  Attorney  General  under  Exec.  Order  No. 
12,250,  3  C.F.R.  298  (1980  Comp.). 

34  28  C.F.R.  §41.5  (1982).  The  Department  of 
Justice  is  currently  working  on  proposed  revi- 
sions to  the  coordination  regulations. 

35  See,  e.g.,  Jones  v.  Metropolitan  Atlanta  Rapid 
Transit  Auth.,  681  F.2d  1376  (11th  Cir.  1982), 
petition  for  cert,  filed,  51  U.S.L.W.  3535  (U.S.  Jan. 
11,  1983)  (No.  82-1159);  Miener  v.  State  of  Mo., 
673  F.2d  969  (8th  Cir.),  cert,  denied,  103  S.Ct.  215, 
230  (1982);  Pushkin  v.  Regents  of  Univ.  of  Colo., 
658  F.2d  1372  (10th  Cir.  1981);  Prewitt  v.  United 
States  Postal  Service,  662  F.2d  292  (5th  Cir.  1981); 
Kling  v.  County  of  Los  Angeles,  633  F.2d  876  (9th 
Cir.  1980);  NAACP  v.  Medical  Center,  Inc.,  599 
F.2d  1247  (3d.  Cir.  1979);  Davis  v.  Southeastern 
Community  College,  574  F.2d  1158  (4th  Cir.  1978), 
rev'd  on  other  grounds,  442  U.S.  397  (1979);  Leary 
v.  Crapsey,  566  F.2d  863  (2d  Cir.  1977).  Moreover, 
§505(a)(2)  (codified  at  29  U.S.C.  §794a(a)(2)  (Supp. 
V  1981)),  applies  the  remedies,  procedures,  and 
rights  available  under  Title  VI  of  the  Civil  Rights 
Act  of  1964  to  handicapped  persons  aggrieved  by 
a  recipient  of  Federal  financial  assistance  or  a 
Federal  provider  of  such  assistance.  The  reme- 
dies include  termination  of  the  Federal  funding 
or  other  means  allowed  by  law.  This  section  also 
provides  that  the  prevailing  party  in  any  lawsuit 
under  Title  V  of  the  Rehabilitation  Act  is  enti- 
tled to  receive  a  reasonable  attorney's  fee.  Id. 
§794a(b). 


51 


to  include  practices  that  directly  or  indi- 
rectly deny  opportunities,36  afford  op- 
portunities that  are  unequal37  or  less 
effective,38  or  require  different  or  sepa- 
rate opportunities.39  In  addition,  recipi- 
ents cannot  use  criteria  or  methods  of 
administration  that  have  the  effect  of 
discriminating  against  handicapped  per- 
sons, regardless  of  whether  they  intend- 
ed to  discriminate.40  All  recipients  must 
provide  assurances  of  compliance  with 
section  504  and  must  conduct  a  self-eval- 
uation of  their  compliance.41  Employers 
covered  by  section  504  are  prohibited 
from  discriminating  in  the  hiring  and 
promotion  of  handicapped  persons.42 
Handicapped  applicants  must  meet  the 
essential  qualifications  for  a  particular 
job  with  reasonable  accommodation43  to 
their  particular  disabilities  unless  such 
an  accommodation  would  cause  an  un- 
due hardship  to  the  recipient.44  Al- 
though the  regulations  do  not  not  use  the 
phrase  reasonable  accommodation  out- 
side of  the  employment  context,  making 
modifications  in  program  operations  to 


36  28  C.F.R.  §41.51(b)(l)(i)  (1982). 

37  Id.  §41.51(b)(l)(ii). 

38  Id.  §41.51(b)(l)(iii). 

39  Id.  §41.51(b)(l)(iv).  This  prohibition  does  not 
apply  where  different  or  separate  programs  or 
services  are  necessary  to  provide  qualified  handi- 
capped persons  with  aids,  benefits,  or  services 
that  are  as  effective  as  those  provided  to  others. 
Id. 

40  Id.  §41.51(b)(3). 
»  Id.  §41.5. 

42  Id.  §41.4(c)(2). 

43  /d§§41.32(a),  41.53. 

44  Id.  §41.53. 

45  The  Federal  regulations  and  the  case  law  that 
require  differing  forms  of  accommodations  for 
handicapped  people  are  analyzed  extensively  in 
chap.  6. 

46  28  C.F.R.  §41.57(a)  (1982);  45  C.F.R.  §84.22(a) 
(1982);  See  Charles  D.  Goldman,  "Architectural 
Barriers:   A   Perspective   On   Progress,"   to   be 


permit  participation  by  handicapped 
people  is  a  consistent  theme  running 
throughout  the  regulations.45  With  re- 
spect to  removing  architectural  barriers, 
the  regulations  require  recipients  to  op- 
erate their  programs  so  that  they  are 
"readily  accessible  to  and  useable  by 
handicapped  persons."46  Recipients  were 
given  3  years  from  the  effective  date  of 
agency  regulations  to  complete  neces- 
sary structural  changes  in  existing  facili- 
ties.47 New  facilities  and,  to  the  maxi- 
mum extent  feasible,  alterations  to  exist- 
ing facilities  are  to  be  designed  and 
constructed  to  be  readily  accessible.48 

Federal  policy  under  section  504  on 
making  mass  public  transportation  ac- 
cessible to  handicapped  persons  has 
changed  repeatedly  and  remains  contro- 
versial.49 Regulations  of  the  U.S.  Depart- 
ment of  Transportation  require  mass 
transit  authorities  to  make  "special  ef- 
forts" to  provide  access  to  public  trans- 
portation and  give  local  governments 
wide  latitude  in  complying  with  the 
requirement.50   The  mass  transit  regula- 

published  in  W.  New  Eng.  L.  Rev.,  vol.  5,  no.  3 
(Winter  1983),  p.  14  of  manuscript. 

47  28  C.F.R.  §41.57(b)  (1982). 

48  Id.  §41.58(a);  45  C.F.R.  §84.23(a)-(b)  (1982). 

49  The  regulatory  scheme  underlying  Federal 
policy  concerning  accessible  mass  transit  is  both 
extremely  complex  and  fluid.  In  addition  to  the 
§504  regulations,  two  Federal  funding  programs 
that  provide  support  for  public  transportation 
also  mandate  efforts  to  make  mass  transit  acces- 
sible to  handicapped  people.  Since  1976  the 
Department  of  Transportation  has  issued  three 
different  sets  of  regulations  on  the  subject  man- 
dating varying  levels  of  accessibility.  The  fluctu- 
ations of  Federal  policy  and  case  law  concerning 
accessible  mass  transit  are  discussed  in  detail  in 
chap.  6  in  the  section  entitled  "Removing  Archi- 
tectural, Transportation,  and  Communication 
Barriers." 

50  49  C.F.R.  §27.77  (1982). 


52 


tions  have  been  the  basis  for  much 
litigation  by  handicapped  people.51 

Another  area  of  active  litigation  has 
been  the  application  of  section  504  to 
elementary  and  secondary  education. 
The  regulations  issued  originally  by  the 
Department  of  Health,  Education,  and 
Welfare  and  adopted  by  the  Department 
of  Education52  are  consistent  with  the 
more  detailed  requirements  of  the  Edu- 
cation for  All  Handicapped  Children  Act 
of  1975,  discussed  later  in  this  chapter.53 

The  Federal  courts'  construction  of 
section  504's  mandate  continues  to  devel- 
op. Section  504  is  increasingly  being 
interpreted  as  requiring  consideration  of 
the  abilities  of  handicapped  people  on  an 
individual  basis,  taking  into  account 
available  modifications,  services,  and  de- 
vices that  would  permit  them  to  partici- 
pate in  programs  and  activities  and,  in 
some  instances,  requiring  individualiza- 
tion of  opportunities.54 

This  interpretation  is  consistent  with 
the  U.S.  Supreme  Court's  only  extensive 
analysis  of  section  504.  In  Southeastern 
Community  College  v.  Davis,55  discussed 
extensively  in  chapter  6,  the  Court  ex- 
plored the  limits  of  the  duty  to  eliminate 

51  See,  eg.,  Dopico  v.  Goldschmidt,  687  F.2d  644 
(2d  Cir.  1982);  American  Pub.  Transit  Ass'n  v. 
Lewis,  655  F.2d  1272  (D.C.  Cir.  1981);  Lloyd  v. 
Regional  Transp.  Auth.,  548  F.2d  1277  (7th  Cir. 
1977). 

52  34  C.F.R.  pt.  104  (1982). 

53  Cases  litigating  the  application  of  §504  and  its 
regulations  to  education  programs  are  noted  in 
the  discussion  below  on  the  Education  for  All 
Handicapped  Children  Act. 

54  Chap.  6  of  this  report  discusses  extensively  the 
issue  of  overcoming  such  barriers  through  rea- 
sonable accommodation. 

»  442  U.S.  397  (1979). 

"  Id.  at  405,  410,  413. 

57  Id  at  412. 

58  Jones  v.  Illinois  Dep't  of  Rehabilitation  Serv., 


discrimination  through  accommodation 
to  a  hearing-impaired  student  seeking 
admission  to  a  nurse  training  program. 
The  Court  held  that  there  were  no  avail- 
able accommodations  that  would  have 
permitted  a  hearing-impaired  nursing 
student  to  participate  in  the  program, 
and  that  section  504  did  not  require 
fundamental  alteration  in  the  nature  of 
a  program56  or  modifications  that  could 
cause  undue  financial  and  administra- 
tive hardship.57 

Since  the  Supreme  Court's  decision  in 
Davis,  Federal  courts  have  required  that 
reasonable  accommodations  be  consid- 
ered or  provided  to  handicapped  persons 
pursuant  to  section  504  in  a  variety  of 
situations,  including:  the  provision  of 
sign  language  interpreters  for  deaf  col- 
lege students,58  provision  of  an  extended 
school  year  for  mentally  retarded  pu- 
pils,59 permission  for  a  deaf  applicant  to 
use  hearing  aids  or  telephone  amplifica- 
tion devices  during  testing  for  Federal 
employment,60  and  provision  of  different 
ways  of  administering  tests  to  a  job 
applicant  with  dyslexia.61 

Another  antidiscrimination  provision 
in  the  Rehabilitation  Act,  section  503, 62 

689  F.2d  724  (7th  Cir.  1982);  Camenisch  v.  Uni- 
versity of  Tex.,  616  F.2d  127  (5th  Cir.  1980),  rev'd 
on  other  grounds,  451  U.S.  390  (1981).  But  cf. 
Board  of  Educ.  v.  Rowley,  102  S.Ct.  3034  (1982). 

59  Phipps  v.  New  Hanover  Bd.  of  Educ,  551  F. 
Supp.  732,  734-35  (E.D.  N.C.  1982);  Garrity  v. 
Galen,  522  F.  Supp.  171,  218,  240  (D.N.H.  1981); 
Georgia  Ass'n  of  Retarded  Citizens  v.  McDaniel, 
511  F.  Supp.  1263,  1279-81  (N.D.  Ga.  1981).  See 
also  Battle  v.  Pennsylvania,  629  F.2d  269  (3d  Cir. 
1980)  (EAHCA  only),  cert,  denied,  452  U.S.  968 
(1981). 

60  Crane  v.  Lewis,  551  F.  Supp  27  (D.D.C.  1982). 

61  Stutts  v.  Freeman,  694  F.2d  666  (11th  Cir. 
1983).  The  developing  legal  standards  for  reason- 
able accommodation  are  discussed  in  chap.  6. 

62  29  U.S.C.  §793  (1976  &  Supp.  V  1981). 


53 


requires  businesses  with  Federal  con- 
tracts of  $2,500  or  more  to  take  affirma- 
tive action  to  employ  and  advance  quali- 
fied handicapped  individuals.  This  affir- 
mative action  requirement  is  enforced  by 
the  Office  of  Federal  Contract  Compli- 
ance Programs  (OFCCP)  of  the  U.S. 
Department  of  Labor.63  Regulations  is- 
sued by  the  Department  require  Federal 
Government  contracts  to  contain  clauses 
that  prohibit  employment  discrimination 
against  qualified  handicapped  persons64 
and  mandate  affirmative  action  to  hire 
and  promote  them.65 

The  regulations  define  a  qualified 
handicapped  person  as  a  handicapped 
person  "who  is  capable  of  performing  a 
particular  job,  with  reasonable  accom- 
modation to  his  handicap."66  The  regula- 
tions further  specify  that  contractors 
"must  make  a  reasonable  accommoda- 


63  41  C.F.R.  pt.  60-741  (1982).  OFCCP  also 
enforces  affirmative  action  in  Federal  employ- 
ment for  certain  disabled  veterans  as  required  by 
the  Vietnam  Era  Veterans  Readjustment  Act,  38 
U.S.C.  §2012  (1976  Supp.  V  1981).  OFCCP  also 
enforces  Executive  Order  No.  11,246,  which  re- 
quires Federal  contractors  with  contracts  of 
$10,000  or  more  to  take  affirmative  action  in 
hiring  and  promoting  women  and  racial  or  ethnic 
minorities.  Section  503,  unlike  §504,  cannot  be 
enforced  by  private  lawsuits  brought  by  ag- 
grieved handicapped  persons.  See  Beam  v.  Sun 
Shipbldg.  &  Dry  Dock  Co.,  679  F.2d  1077  (3d  Cir. 
1982);  Davis  v.  United  Airlines,  662  F.2d  120  (2d 
Cir.  1981),  cert,  denied,  102  S.Ct.  2045  (1982); 
Fisher  v.  Tucson,  663  F.2d  861  (9th  Cir.  1981), 
cert,  denied,  103  S.  Ct.  178  (1982);  Simon  v.  St. 
Louis  County,  656  F.2d  316  (8th  Cir.  1981),  cert, 
denied,  455  U.S.  976  (1982);  Simpson  v.  Reynolds 
Metals  Co.,  629  F.2d  1226  (7th  Cir.  1980);  Rogers 
v.  Frito-Lay,  Inc.,  611  F.2d  1074  (5th  Cir.),  cert, 
denied,  449  U.S.  889  (1980);  Hoopes  v.  Equifax, 
Inc.,  611  F.2d  134  (6th  Cir.  1979). 

64  41  C.F.R.  §60-741.4  (1982). 

65  Id.  §60-741.6.  The  regulations  do  not  provide  a 
clear  description  of  what  is  required  in  order  to 
avoid  discrimination  and  what  is  required  to 
fulfill  the  affirmative  action  requirement.  The 


tion  to  the  physical  and  mental  limita- 
tions of  an  employee  or  appli- 
cant. .  .  ,"67  Although  the  regulations 
do  not  define  what  constitutes  a  reason- 
able accommodation,  appendix  B  to  the 
regulations  provides  a  sample  notice  to 
employees  that  characterizes  accommo- 
dations as  "the  accommodations  which 
we  could  make  which  would  enable  you 
to  perform  the  job  properly  and  safely, 
including  special  equipment,  changes  in 
the  physical  layout  of  the  job,  elimina- 
tion of  certain  duties  relating  to  the  job, 
or  other  accommodations."68  The  duty 
imposed  upon  Federal  contractors  to 
take  steps  to  mitigate  the  effects  on  job 
performance  of  an  individual's  handicap- 
ping condition  is  not  unlimited;  a  con- 
tractor may  take  into  account  both  busi- 
ness necessity  and  costs.69 

distinction  between  affirmative  action  and  non- 
discrimination is  discussed  in  chaps.  6  and  7. 
Contractors  with  50  or  more  employees  or  $50,000 
or  more  in  Federal  contracts  must  have  a  written 
affirmative  action  plan.  §60-74 1.5(a). 

66  41  C.F.R.  §60-741.2  (1982).  The  regulations 
further  note  that  "to  the  extent  that  qualifica- 
tion requirements  tend  to  screen  out  qualified 
handicapped  individuals,  the  requirements  shall 
be  related  to  the  specific  job  or  jobs  for  which  the 
individual  is  being  considered  and  shall  be  consis- 
tent with  business  necessity  and  the  safe  perfor- 
mance of  the  job."  Id.  §60-741.6(0(2).  See  E.  E. 
Black,  Ltd.  v.  Marshall,  497  F.  Supp  1088,  1103 
(D.  Haw.  1980). 

67  41  C.F.R.  §60-741.5(d)  (1982). 

68  Id.  pt.  60-741,  app.  B  (1982). 

69  Id.  §741. 6(d).  The  "business  necessity"  defense 
to  discrimination  was  first  developed  with  re- 
spect to  Title  VII  of  the  Civil  Rights  Act  of  1964 
(codified  at  42  U.S.C.  §§2000e  to  2000e-17)  which 
prohibits  employment  discrimination  on  the  ba- 
sis of  race,  color,  religion,  sex,  and  national 
origin.  One  court  has  succinctly  summarized  the 
concept  as  follows: 

The  test  is  whether  there  exists  an  overriding 
legitimate  business  purpose  such  that  the 


54 


As  part  of  their  affirmative  action 
obligations,  Federal  contractors  must  un- 
dertake a  self-analysis  of  their  personnel 
processes  to  ensure  that  handicapped 
applicants  and  employees  are  carefully, 
thoroughly,  and  systematically  consid- 
ered for  hiring  and  promotions.70  The 
employer  must  also  assess  physical  or 
mental  job  qualifications  that  tend  to 
screen  out  qualified  handicapped  people 
and  must  modify  such  job  qualifications 
to  ensure  they  are  job  related  and  consis- 
tent with  business  necessity.71  Depend- 
ing upon  the  results  of  this  self-analysis, 
the  employer  is  advised  to  actively  publi- 
cize its  affirmative  action  policies  to 
recruit  more  handicapped  applicants  and 
to  hire  and  promote  handicapped  em- 
ployees.72 

Section  501  of  the  Rehabilitation  Act73 
carries  out  Congress'  intent  that  the 
Federal  Government  be  an  exemplary 
equal  opportunity  employer  of  handi- 
capped people.74  It  requires  each  Federal 
department  or  agency,  including  the  U.S. 
Postal  Service,  to  establish  an  affirma- 
tive action  plan  to  encourage  the  hiring, 

[challenged  employment]  practice  is  neces- 
sary to  the  safe  and  efficient  operation  of  the 
business.  Thus,  the  business  purpose  must  be 
sufficiently  compelling  to  override  any  racial 
impact;  the  challenged  practice  must  effec- 
tively carry  out  the  business  purpose  it  is 
alleged  to  serve;  and  there  must  be  available 
no  acceptable  alternative  policies  or  prac- 
tices which  would  better  accomplish  the 
business  purpose  advanced,  or  accomplish  it 
equally  well  with  a  lesser  differential  racial 
impact,  [footnotes  omitted]. 

Robinson  v.  Lorillard,  444  F.2d  791,  798  (4th  Cir. 
1971),  cert,  dismissed,  404  U.S.  1006-07  (1971, 
1972).  See  also  Bentivegna  v.  United  States  Dep't 
of  Labor,  694  F.2d  619  (7th  Cir.  1982). 

70  41  C.F.R.  §60.741.6(b)  (1982). 

71  Id.  §60-741. 6(c). 

72  Id  60-74 1.6(f). 


placement,  and  promotion  of  handi- 
capped individuals.75  The  law  also  estab- 
lishes an  Interagency  Committee  on 
Handicapped  Employees  to  encourage 
increased  employment  of  handicapped 
people  by  the  government.76  Section  501 
both  prohibits  handicap  discrimination 
in  Federal  employment  and  mandates 
affirmative  action.77  Under  the  affirma- 
tive action  component  of  section  501,  all 
Federal  agencies  and  the  Postal  Service 
are  required  annually  to  establish  writ- 
ten affirmative  action  plans  that  specify 
goals  for  the  employment  and  advance- 
ment of  handicapped  applicants  and  em- 
ployees within  the  Federal  work  force.78 
Agencies  are  to  emphasize  employment 
of  people  with  certain  targeted  disabili- 
ties: deafness,  blindness,  missing  extrem- 
ities, partial  or  complete  paralysis,  con- 
vulsive disorders,  mental  retardation, 
mental  illness,  and  distortion  of  the 
spine  or  limbs.79  Agencies  with  more 
than  500  employees  must  establish  nu- 
merical goals  for  employment  of  persons 
with  targeted  disabilities.80  Agencies 
must  also  establish  a  special  recruitment 

73  29  U.S.C.  §791  (1976). 

74  See  comments  of  Senator  Cranston,  one  of  the 
authors  of  the  original  act  and  the  1978  amend- 
ments, 124  Cong.  Rec.  30347  (1978).  See  also  29 
U.S.C.  §794a(a)(l)  (Supp.  V  1981);  29  C.F.R. 
§1613.703  (1982). 

75  29  U.S.C.  §791(b)  (1976). 

76  Id.  §791(a). 

77  Shirey  v.  Devine,  670  F.2d  1188,  1200-04  (D.C. 
Cir.  1982). 

78  U.S.,  Equal  Employment  Opportunity  Com- 
mission, Management  Directive  711,  Nov.  2, 1982, 
p.  2. 

79  Ibid.,  p.  3. 

80  Ibid.  All  handicapped  persons,  as  broadly 
defined  in  the  Rehabilitation  Act  (see  discussion 
in  chap.  1  in  the  section  entitled  "Defining 
Handicaps")  are  covered  by  both  the  nondiscri- 
mination and  the  affirmative  action  provisions  of 
§501. 


55 


program  and  goals  and  timetables  for 
facility  accessibility.81 

Section  501  regulations  promulgated 
by  the  U.S.  Equal  Employment  Opportu- 
nity Commission  (EEOC)82  set  out  specif- 
ic standards  with  respect  to  reasonable 
accommodation,83  employment  criteri- 
a,84  preemployment  inquiries,85  and 
physical  access  to  buildings.86  Federal 
employees  and  applicants  for  Federal 
employment  who  believe  they  have  been 
subjected  to  discrimination  because  of 
their  handicap  may  file  a  complaint  with 
EEOC87  and,  if  unsuccessful  through  the 
administrative  route,  may  file  a  lawsuit 
in  Federal  court.88 


81  Ibid.,  pp.  3-4. 

82  29  C.F.R.  pt.  1613,  subpt.  G  (1982). 

83  Id.  §1613.704.  §505(a)(l)  of  the  Rehabilitation 
Act  specifically  permits  courts  to  take  into  ac- 
count "the  reasonableness  of  the  cost  of  any 
necessary  work  place  accommodation,  and  the 
availability  of  any  alternatives  therefor  or  other 
appropriate  relief  in  order  to  achieve  an  equita- 
ble and  appropriate  remedy."  29  U.S.C. 
§794a(a)(l)  (Supp.  V  1981). 

84  29  C.F.R.  §1613.705  (1982). 

85  Id.  §1613.706. 

86  Id.  §1613.707. 

87  29  U.S.C.  §794a(a)(l)  (Supp.  V  1981).  In 
addition,  discrimination  on  the  basis  of  handicap 
is  a  prohibited  personnel  practice,  and  Federal 
employees  may  appeal  employer-initiated  ad- 
verse actions  allegedly  based  upon  such  a  prohi- 
bited practice  to  the  U.S.  Merit  Systems  Protec- 
tion Board.  5  U.S.C.  §§2302(b)(l)(D),  7701(c)(2)(b) 
(Supp.  V  1981). 

88  29  U.S.C.  §794a(a)(l)  (Supp.  V  1981). 

89  Education  for  All  Handicapped  Children  Act 
of  1975,  Pub.  L.  No.  94-142,  89  Stat.  773  (codified 
at  20  U.S.C.  §§1232,  1400,  1401,  1405-1420,  1453) 
(1976  and  Supp.  V  1981).  Public  Law  94-142  was 
itself  an  amendment  and  substantial  revision  of 
the  Education  of  the  Handicapped  Act,  Pub.  L. 
No.  91-230,  tit.  VI,  84  Stat.  175  (1970).  The 
combination  of  these  two  acts  is  collectively 
referred  to  as  the  "Education  of  the  Handicapped 
Act."  See  20  U.S.C.  §§1401-1461  (1976  &  Supp.  V 


Education  for  All  Handicapped 
Children  Act 

The  Education  for  All  Handicapped 
Children  Act,  also  referred  to  as  Public 
Law  94-142,  was  enacted  in  197589 
because  of  congressional  concern  and 
dissatisfaction  with  the  complete  exclu- 
sion of  millions  of  handicapped  children 
from  the  Nation's  public  schools  and 
with  the  inappropriateness  of  education- 
al programs  available  to  additional  mil- 
lions of  handicapped  children.90  To  rem- 
edy these  problems  and  "to  provide  assis- 
tance to  the  States  in  carrying  out  their 
responsibilities.  .  .to  provide  equal  pro- 
tection of  the  laws,"91  Congress  incorpo- 
rated in  the  act  principles  derived  from 

1981).  This  chapter  uses  the  title  Education  for 
All  Handicapped  Children  Act  because  that  act's 
substantive  provisions  are  pertinent  to  this  re- 
port. 

90  The  statute  is  supported  by  congressional 
findings  of  discrimination,  20  U.S.C.  §1400(b) 
(Supp.  V  1981),  which  are  quoted  in  chap.  2  in  the 
subsection  entitled  "Education."  See  S.  Rep.  No. 
168,  94th  Cong.,  1st  Sess.  8,  reprinted  in  1975  U.S. 
Code  Cong.  &  Ad.  News  1432);  H.R.  Rep.  No.  332, 
94th  Cong.,  1st  Sess.  2  (1975).  See  also  Board  of 
Educ.  v.  Rowley,  102  S.  Ct.  3034,  3043,  3045-46 
(1982)  (reviewing  the  legislative  history  of  the 
Education  for  All  Handicapped  Children  Act). 
Congress'  first  effort  to  assist  States  in  the 
education  of  handicapped  children  was  an 
amendment  to  the  Elementary  and  Secondary 
Education  Act  of  1965  establishing  a  grant  pro- 
gram to  States  that  established  or  expanded 
educational  programs  for  the  handicapped.  Pub. 
L.  No.  89-750,  §161,  80  Stat.  1204  (1966).  In  1970 
Congress  passed  the  more  comprehensive  Educa- 
tion for  the  Handicapped  act,  Pub.  L.  No.  91-230, 
tit.  VI,  84  Stat.  175.  Part  B  of  the  1970  act  (84 
Stat.  178)  extended  the  earlier  grant  program. 
Seeking  to  stimulate  expanded  State  efforts  in 
the  area,  neither  statute  had  specific  guidelines 
dictating  how  the  States  were  to  use  the  funds. 
Congressional  dissatisfaction  with  the  results  of 
these  programs  led  to  the  1975  bill. 

91  S.  Rep.  No.  168,  94th  Cong.,  1st  Sess.  13, 
reprinted  in  1975  U.S.  Code  Cong.  &  Ad.  News 


56 


Federal  court  decisions  regarding  equal 
educational  opportunity  for  handicapped 
children.92 

Federal  grants  to  State  and  local  agen- 
cies under  the  law  are  provided  in  accor- 
dance with  a  detailed  funding  formula. 
They  are  preconditioned  upon  a  State's 
compliance  with  equal  educational  op- 
portunity procedures  and  goals  set  out  in 
the  statute.  To  qualify,  a  State  must 
demonstrate  it  "has  in  effect  a  policy 
that  assures  all  handicapped  children 
the  right  to  a  free  appropriate  public 
education."93  This  policy  must  be  reflect- 
ed in  a  State  plan  that  describes  the 
goals,  programs,  and  timetables  under 
which  the  State  intends  to  educate  hand- 
icapped children  within  its  borders;  the 
plan  must  be  submitted  to  and  approved 
by  the  U.S.  Secretary  of  Education.94 

The  act  sets  out  a  number  of  major 
requirements: 

Identifying  Handicapped  Chil- 
dren, Each  State  must  undertake  pro- 
cedures to  identify,  locate,  and  evaluate 
all  handicapped  children  residing 
there.95  This  requirement  grew  out  of 
congressional  findings  that  large  num- 
bers of  handicapped  children  were  not 
receiving  an  appropriate  education  be- 
cause their  handicaps  were  undetected 
or  misclassified.96 

Individualized  Education  Pro- 
gram.    To  ensure  the  tailoring  of  educa- 

1437.  Significantly,  recipients  of  funds  under  this 
law  are  required  to  make  positive  efforts  to 
employ  and  promote  qualified  handicapped  per- 
sons. 20  U.S.C.  §1405  (1976). 
92  E.g.,  Pennsylvania  Ass'n  for  Retarded  Chil- 
dren v.  Pennsylvania,  334  F.  Supp.  1257  (E.D.  Pa. 
1971),  343  F.  Supp.  279  (E.D.  Pa.  1972)  and  Mills 
v.  Board  of  Educ.  of  D.C.,  348  F.  Supp.  866  (D.D.C. 
1972).  S.  Rep.  No.  168,  94th  Cong.,  Sess.  6-7, 
reprinted  in  1975  U.S.  Code  Cong.  &  Ad.  News 
1430-31.  The  influence  of  these  cases  on  Pub.  L. 
No.  94-142  is  discussed  by  the  Supreme  Court  in 


tional  programs  to  each  child's  unique 
needs,  education  agencies  must  develop 
an  individualized  education  program 
(IEP)  for  each  handicapped  child.  An  IEP 
is  a  written  statement  developed  at  a 
meeting  of  a  representative  of  the  local 
education  agency,  the  teacher,  the  par- 
ents, and  when  appropriate,  the  child. 
The  IEP  must  include:  (a)  a  statement  of 
the  present  levels  of  educational  perfor- 
mance of  the  child;  (b)  a  statement  of 
annual  goals,  including  short-term,  in- 
structional objectives;  (c)  a  statement  of 
the  specific  educational  services  to  be 
provided  to  the  child  and  the  extent  to 
which  the  child  will  be  able  to  partici- 
pate in  regular  educational  programs;  (d) 
the  projected  date  for  initiation  of  such 
services  and  their  anticipated  duration; 
and  (e)  appropriate  objective  criteria  and 
evaluation  procedures  and  schedules  for 
determining,  on  at  least  an  annual  basis, 
whether  the  plan  is  achieving  the  stated 
instructional  goals.97 

Nondiscriminatory  Testing.  States 
must  establish  procedures  to  assure  that 
the  testing  and  evaluation  materials  and 
procedures  used  to  evaluate  and  place 
handicapped  children  are  not  racially  or 
culturally  discriminatory.98 

Procedural  Safeguards.  The  act  speci- 
fies comprehensive  procedural  require- 
ments, such  as  written  notice,  due  pro- 
cess  hearings,    access   to    records,    and 

Board  of  Educ.  v.  Rowley,  102  S.Ct.  at  3043-44; 
the  decision  also  contains  a  brief  summary  of 
previous  Federal  statutory  developments  regard- 
ing the  education  of  handicapped  persons.  Id.  at 
3037. 

93   20  U.S.C.  §1412(1)  (1976). 
9"   Id.  §§1412(2),  1413.' 

95  Id.  §1412(2)(C). 

96  20  U.S.C.  §1400(b)(5)  (Supp.  V  1981). 

97  20  U.S.C.  §1401(19)  (1976). 

98  Id.  §1412(5)(C). 


57 


right  to  counsel,  permitting  parental  or 
guardian  challenges  to  an  IEP  or  its 
implementation  by  school  authorities." 
Parties  to  a  hearing  in  a  local  school 
district  are  entitled  to  have  the  State 
educational  agency  review  the  hearing 
decision100  and  to  appeal  the  final  deci- 
sion to  State  or  Federal  court.101  Federal 
district  courts  are  expressly  given  juris- 
diction over  such  actions.102  States  must 
set  procedures  (often  called  surrogate 
parent  procedures)  for  the  representa- 
tion of  children  whose  parents  are  un- 
known or  unavailable  or  who  are  wards 
of  the  State.103 

Least  Restrictive  Environ- 
ment. Education  agencies  must  estab- 
lish procedures  for  assuring  that  handi- 
capped children  are  educated  with  non- 
handicapped  children  to  the  maximum 
extent  appropriate.  Removal  of  handi- 
capped children  from  the  regular  educa- 
tional environment  may  occur  only  when 
the  nature  or  degree  of  the  handicap  is 
such  that  education  in  regular  classes 
cannot  be  accomplished  satisfactorily 
even  with  the  use  of  supplementary  aids 
and  services.104 

Periodic  Reviews.  IEPs  must  be  eval- 
uated at  least  annually  to  determine 
their  effectiveness  in  meeting  the  educa- 


99  Id.  §1415(b),(d). 

100  Id.  §1415(c). 


101  Id.  §1415(e). 

102  Id.  §1415(e)(4). 

103  Id.  §1415(b)(l)(B). 

104  Id.  §1412(5). 

105  Id.  §1413(a)(ll). 

106  See,  e.g.,  Tatro  v.  Texas,  703  F.2d  823  (5th  Cir. 
1983);  Hessler  v.  State  Bd.  of  Educ,  700  F.2d  134 
(4th  Cir.  1983);  Springdale  School  Dist.  No.  50  v. 
Grace,  693  F.2d  41  (8th  Cir.  1982),  cert,  denied, 
103  S.Ct.  2086  (1983);  Doe  v.  Aurig,  692  F.2d  800 
(1st  Cir.  1982);  Tockarcik  v.  Forest  Hills  School 
Dist.,  665  F.2d  443  (3d  Cir.  1981),  cert,  denied,  sub 


tional  needs  of  each  handicapped  child.105 

To  make  the  act  work  for  their  chil- 
dren, many  parents  of  handicapped  chil- 
dren have  sued  for  enforcement  of  their 
rights.  The  results  of  this  litigation  have 
largely  been  to  uphold  both  the  letter 
and  the  spirit  of  the  act's  intent  to 
ensure  that  all  handicapped  children 
receive  appropriate  education.106 

The  U.S.  Supreme  Court's  first  inter- 
pretation of  this  law  came  in  Board  of 
Education  of  Hendrick  Hudson  Central 
School  District  v.  Rowley. 107  The  parents 
of  an  elementary  student  with  only  mini- 
mal residual  hearing  filed  suit  to  force 
the  school  district  to  provide  a  sign 
language  interpreter  for  their  daughter 
in  the  classroom.  The  school  district  was 
already  providing  the  child  with  a  hear- 
ing aid  and  tutors  after  school,  and  the 
child  was  performing  better  than  aver- 
age and  was  passing  easily  from  grade  to 
grade,  despite  the  fact  she  could  only 
understand  approximately  50  percent  of 
what  was  being  said  in  the  classroom.108 

The  Supreme  Court  rejected  the  par- 
ents' claim  that  the  Education  for  All 
Handicapped    Children    Act   required 


nom.  Scanlon  v.  Tokarcik,  102  S.Ct.  3508  (1982); 
New  Mexico  Ass'n  for  Retarded  Citizens  v.  New 
Mexico,  678  F.2d  847  (10th  Cir.  1982);  Battle  v. 
Pennsylvania,  629  F.2d  269  (3d  Cir.  1980),  cert, 
denied,  452  U.S.  968  (1981);  Tatro  v.  Texas,  625 
F.2d  557  (5th  Cir.  1980);  Gladys  J.  v.  Pearland 
Indep.  School  Dist.,  520  F.  Supp.  869  (S.D.  Texas 
1981);  Association  for  Retarded  Citizens  v.  Frazi- 
er,  517  F.Supp.  105  (D.  Colo.  1981);  Georgia  Ass'n 
of  Retarded  Citizens  v.  McDaniel,  511  F.  Supp. 
1263  (N.D.  G  1981). 

107  102  S.Ct.  3034  (1982). 

108  Id.  at  3039-40. 


58 


States  to  realize  the  maximum  potential 
of  each  handicapped  child:109  "Congress 
did  not  impose  upon  the  States  any 
greater  substantive  educational  standard 
than  would  be  necessary  to 
make.  .  .access  [to  public  education] 
meaningful."110  The  Court  construed  the 
Education  for  All  Handicapped  Children 
Act  to  require  an  adequate,  meaningful 
education  but  not  an  education  necessar- 
ily equal  in  all  respects  to  the  education 
received  by  other  children,  nor  an  educa- 
tion designed  to  bring  each  child  to  his  or 
her  highest  possible  level  of  educational 
achievement.111  In  so  ruling,  the  Court 
acknowledged  Congress'  intent  that  all 
handicapped  children  be  educated  and 
recognized  that  Congress  had  imposed 
extensive  requirements,  including  for- 
mulation of  the  IEP  and  guarantees  of 
parental  involvement  throughout  the  ed- 
ucational placement  process,  to  assure 
that  this  objective  was  achieved.112 

Developmental  Disabilities 
Assistance  and  Bill  of  Rights 
Act 

The  Developmental  Disablities  Assis- 
tance and  Bill  of  Rights  act113  focuses  on 
a  specific  group  of  handicapped  persons. 
The  act  continues  a  Federal-State  grant 
program  to  assist  and  encourage  States 
to  improve  care  and  training  for  develop- 
mentally  disabled  citizens.114 

The  term  "developmental  disability"  is 
a  legal  hybrid  comprising  disabilities 
attributable  to  mental  or  physical  im- 
pairments that  cause  substantial  func- 

109  Id.  at  3046-48. 

110  Id,  at  3043. 

111  Id  at  3046-47. 

112  Id.  at  3037-39,  3050. 

113  Codified  at  42  U.S.C.  §§6000-81  (1976  &  Supp. 
V  1981). 


tional  limitations  in  three  or  more  of  the 
following  life  activities:  self-care,  recep- 
tive and  expressive  language,  learning, 
mobility,  self-direction,  capacity  for  inde- 
pendent living,  and  economic  sufficiency. 
The  disability  must  start  before  a  person 
reaches  the  age  of  22  and  be  likely  to 
continue  indefinitely.  To  be  considered 
developmentally  disabled  a  person  must 
also  need  extended,  individually  planned 
and  coordinated,  interdisciplinary  care 
or  treatment.115 

Congress  explained  the  needs  of  the 
targeted  group,  the  problems  they  face, 
and  national  objectives  in  the  preamble 
to  this  law: 


(1)  there  are  more  than  two  million 
persons  with  developmental  disabili- 
ties in  the  United  States; 


(2)  individuals  with  disabilities  oc- 
curring during  their  developmental 
period  are  more  vulnerable  and  less 
able  to  reach  an  independent  level  of 
existence  than  other  handicapped 
individuals.  .  .  . 


(3)  persons  with  developmental  dis- 
abilities often  require  specialized 
lifelong  services  to  be  provided  by 
many  agencies  in  a  coordinated 
manner  in  order  to  meet  the  per- 
son's needs; 

(4)  general  service  agencies  and 
agencies  providing  specialized  ser- 

114  42  U.S.C.  §6000(b)  (Supp.  V  1981).  For  a 
discussion  of  the  act's  provisions  and  purposes, 
see  Pennhurst  State  School  and  Hosp.  v.  Haider- 
man,  451  U.S.  1, 11-14  (1981). 

115  42  U.S.C.  §6001(7)  (Supp.  V  1981).  See  chap.  1 
in  the  section  entitled  "Defining  'Handicaps'.' 


59 


vices  to  disabled  persons  tend  to 
overlook  or  exclude  persons  with 
developmental  disabilities  in  their 
planning  and  delivery  of  services; 
and 


(5)  it  is  in  the  national  interest  to 
strengthen  specific  programs,  espe- 
cially programs  that  reduce  or  elimi- 
nate the  need  for  institutional  care, 
to  meet  the  needs  of  persons  with 
developmental  disabilities.116 

Congress'  "overall  purpose.  .  .[is]  to  as- 
sist States  to  assure  that  persons  with 
developmental  disabilities  receive  the 
care,  treatment,  and  other  services  nec- 


116  Id.  §6000(a). 

117  Id.  §6000(b)(l).  Congress  has  attempted  to 
improve  programs  for  mentally  retarded  individ- 
uals, the  original  class  of  disabled  persons  from 
which  the  class  of  developmentally  disabled 
persons  was  created,  over  the  past  20  years. 
President  Kennedy  sent  to  Congress  a  message 
regarding  mental  illness  and  mental  retardation. 
"Special  Message  to  the  Congress  on  Mental 
Illness  and  Mental  Retardation,"  Public  Papers 
of  the  Presidents:  John  F.  Kennedy,,  p.  126  (Feb. 
5,  1963),  reprinted  in  1963  U.S.  Code  Cong.  &  Ad. 
News  1466.  That  message  called  for  legislation  to 
eradicate  the  causes  of  mental  retardation  and  to 
improve  conditions  in  facilities  serving  the  men- 
tally retarded.  Congress  responded  by  passing 
the  Maternal  and  Child  Health  and  Mental 
Retardation  Planning  Amendments  of  1963,  Pub. 
L.  88-156,  §5,  77  Stat.  275,  and  the  Mental 
Retardation  Facilities  and  Community  Mental 
Health  Centers  Construction  Act  of  1963,  Pub.  L. 
No.  88-164,  77  Stat.  282.  These  programs  were 
expanded  in  the  Mental  Retardation  Facilities 
and  Community  Mental  Health  Centers  Con- 
struction Act  Amendments  of  1965,  Pub.  L.  No. 
89-105,  79  Stat.  427,  and  in  the  Social  Security 
Amendments  of  1965,  Pub.  L.  No.  89-97,  79  Stat 
286,  under  which  funds  were  made  available  so 
that  States  could  begin  to  implement  their  com- 
prehensive mental  retardation  plans  developed 
with  previous  funding.  Pub.  L.  No.  89-105,  §220, 
79  Stat.  428;  Pub.  L.  No.  89-97,  §211,  79  Stat.  356. 


essary  to  enable  them  to  achieve  their 
maximum  potential  through  a  system 
which  coordinates,  monitors,  plans,  and 
evaluates  those  services  and  which  en- 
sures the  protection  of  the  legal  and 
human  rights  of  persons  with  develop- 
mental disabilities."117 

Participating  States  must  use  funds 
allocated  under  the  act  in  accordance 
with  a  State  plan  approved  by  the  Secre- 
tary of  the  Department  of  Health  and 
Human  Services.118  A  plan  must  include 
assurances  that  every  developmentally 
disabled  person  receiving  services  from 
any  program  funded  under  the  act  has  a 
written,  individual,  habilitation  plan.119 
Individualized  plans  must  state  interme- 

Congress  broadened  its  concern  to  include  other 
neurological  disorders  such  as  cerebral  palsy, 
epilepsy,  and  similar  conditions  requiring  similar 
treatment,  in  the  Developmental  Disabilities 
Services  and  Facilities  Construction  Amend- 
ments of  1970,  Pub.  L.  No.  91-517,  84  Stat.  1316. 
In  1975  Congress  passed  the  Developmentally 
Disabled  Assistance  and  Bill  of  Rights  Act,  Pub. 
L.  No.  94-103,  89  Stat.  486.  The  current  act 
consists  principally  of  amendments  from  the 
Rehabilitation,  Comprehensive  Services,  and  De- 
velopmental Disabilities  Amendments  of  1978, 
Pub.  L.  No.  95-602,  tit.  V,  92  Stat.  3003. 

118  42  U.S.C.  §6062(a)(l)  (Supp.  V  1981).  Sub- 
chapter III  of  the  act  provides  funds  pursuant  to 
the  approved  State  plan  for  planning  and  ser- 
vices for  developmentally  disabled  persons  and 
specifies  extensive  requirements  for  the  State 
plans,  including  the  creation  of  a  State  planning 
council  to  devise  and  oversee  the  implementation 
of  the  plan.  42  U.S.C.  §§6061-6068  (1976  &  Supp. 
V  1981).  Subchapter  II  authorizes  grants  to 
university-affiliated  centers  and  satellite  centers 
for  training  and  research  activities.  42  U.S.C. 
§§6031-6033  (Supp.  V  1981).  Subchapter  IV  au- 
thorizes the  funding  of  grants  for  demonstration 
programs  that  have  promise  for  expanding  or 
improving  protection  and  advocacy  or  other 
services  to  developmentally  disabled  persons.  42 
U.S.C.  §6081  (Supp.  V  1981). 

119  42  U.S.C.  §6011  (1976  &  Supp.  V  1981).  "The 
American  Psychiatric  Association  explains  that 


60 


L 


diate  and  long  term  habilitation  objec- 
tives, the  means  to  achieve  those  objec- 
tives, criteria  for  evaluating  the  effec- 
tiveness of  the  program,  and  the  coordi- 
nator responsible  for  its  implementa- 
tion.120 The  individual  habilitation  plan 
must  be  reviewed  annually  by  the  agen- 
cy providing  habilitation  services  in  con- 
ference with  the  client  and,  where  appro- 
priate, the  client's  parents.121 

In  addition  to  mandating  delivery  of 
coordinated,  individualized  services  con- 
sidered essential  by  Congress,  Congress 
also  provided  a  "Bill  of  Rights."  It  dec- 
lares that  developmentally  disabled  per- 
sons have  "a  right  to  appropriate  treat- 
ment, services  and  habilitation"  that 
"maximize  the  developmental  potential 
of  the  person.  .  .[and  are]  provided  in 
the  setting  that  is  least  restrictive  of  the 
person's  personal  liberty."122 

Congress  required  that  each  State 
have  in  place,  as  a  condition  for  receiving 
Federal  funds,  a  system  to  protect  and 
advocate  the  rights  of  developmentally 
disabled  individuals.123  Each  recipient  of 

'[t]he  word  'habilitation,".  .  .is  commonly  used 
to  refer  to  programs  for  the  mentally  retarded 
because  mental  retardation  is.  .  .a  learning  disa- 
bility and  training  impairment'.  .  .  .[T]he  prin- 
cipal focus  of  habilitation  is  upon  training  and 
development  of  needed  skills."  Youngberg  v. 
Romeo,  102  S.Ct.  2452,  2454  n.l(1982). 

120  42  U.S.C.  §601 1(b)(3)  (Supp.  V  1981). 

121  42  U.S.C.  §6011(c)  (1976). 

122  42  U.S.C.  §6010(l)-(2)  (1976  &  Supp.  V  1981). 

123  42  U.S.C.  §6012  (Supp.  V  1981). 
12«   42  U.S.C.  §6005  (1976). 

125  451  U.S.  1  (1981). 

126  451  U.S.  at  11-32  (1981).  The  Court  expressly 
left  open,  as  a  question  for  remand,  whether 
other  sections  of  the  act,  including  42  U.S.C. 
§6063(b)(5)(c)  (1976  &  Supp.  IV  1980)  which 
incorporates  the  Bill  of  Rights  section  by  explicit 
reference,  create  enforceable  rights.  451  U.S.  at 
13-14,  27-30.  On  remand,  the  circuit  court  ex- 
pressly acknowledged  that  these  questions  of 
enforceability  of  other  sections  of  the  act  still 


funds  under  this  law  also  must  take 
affirmative  action  to  hire  and  promote 
qualified  handicapped  individuals.124 

The  United  States  Supreme  Court  in 
Pennhurst  State  School  and  Hospital  v. 
Halderman,125  its  first  decision  inter- 
preting this  statute,  concluded  that 
Congress  did  not  intend  in  the  bill  of 
rights  section  of  the  act  to  create  enforce- 
able obligations  upon  the  States  to  pro- 
vide habilitation  in  the  least  restrictive 
setting.126  Although  this  declaration  of 
rights  is,  therefore,  not  directly  binding 
upon  the  States,  it  is  a  clear  expression 
of  congressional  policy  and  a  preference 
for  certain  kinds  of  treatment.127 

Architectural  Barriers  Act 

The  Architectural  Barriers  Act  of 
1968,  as  amended,128  requires  generally 
that  all  buildings  constructed  or  altered 
or  financed  by  the  Federal  Government 
be  accessible  to  and  usable  by  physically 
handicapped  persons  in  accordance  with 

remained,  but  did  not  reach  them  because  of  its 
conclusion  that  Pennsylvania  standards  created 
such  rights.  Halderman  v.  Pennhurst  State 
School  and  Hosp.,  673  F.2d  647,  650-656  (3d  Cir. 
1982).  The  Supreme  Court  has,  however,  decided 
that  those  persons  who  have  been  involuntarily 
committed  to  mental  retardation  facilities  have  a 
constitutional  right,  under  the  due  process  clause 
of  the  14th  amendment,  to  reasonably  safe  condi- 
tions of  confinement,  freedom  from  unreasonable 
bodily  restraints,  and  such  minimally  adequate 
training  as  may  reasonably  be  required  by  these 
liberty  interests.  Youngberg  v.  Romeo,  102  S.Ct. 
2452  (1982).  In  addition,  Congress  enacted  the 
Civil  Rights  of  Institutionalized  Persons  Act,  42 
U.S.C.  §1997-1997j  (Supp.  V  1981),  granting  the 
Attorney  General  the  authority  to  bring  suit  to 
enforce  the  civil  rights  of  persons  in  jails,  prisons, 
and  mental  health  and  mental  retardation  facili- 
ties. 

127  451  U.S.  at  19. 

128  42  U.S.C.  §§4151-4157  (1976). 


61 


standards  established  by  the  govern- 
ment.129 In  1973  Congress  created  the 
Architectural  and  Transportation  Barri- 
ers Compliance  Board130  and  in  1978 
empowered  it  to  "establish  minimum 
guidelines  and  requirements  for  stan- 
dards" issued  under  the  Architectural 
Barriers  Act.131  After  considerable  con- 
troversy, and  several  different  ver- 
sions,132 the  Board  issued  minimum 
guidelines  and  requirements  for  accessi- 
ble design  that  became  effective  Septem- 
ber 3,  1982.133  The  U.S  General  Services 
Administration,  the  Department  of  De- 
fense, the  Department  of  Housing  and 
Urban  Development,  and  the  U.S.  Postal 
Service,  all  of  which  had  issued  accessi- 
bility regulations  prior  to  the  issuance  of 
the  Board's  minimum  guidelines,134  now 
are  required  by  law  to  revise  their  regu- 
lations to  make  them  consistent  with  the 
Board's.135   The  Board  can  enforce  these 


129  Specifically,  the  law  applies  to  public  build- 
ings or  any  building  that  may  result  in  the 
employment  or  residence  of  a  physically  handi- 
capped person  and  that  was  (1)  constructed  or 
altered  by  or  on  behalf  of  the  United  States;  (2) 
leased  in  whole  or  in  part  by  the  United  States 
after  August  12,  1968;  (3)  financed  in  whole  or  in 
part  by  a  grant  or  loan  from  the  United  States 
after  August  12,  1968  where  the  government  was 
prescribing  design  standards;  or  (4)  the  Washing- 
ton, D.C.,  subway  system.  Id.  §4151. 

130  29  U.S.C.  §792  (1976  &  Supp.  V  1981). 

131  29  U.S.C  §792(b)(7)  (Supp.  V  1981). 

132  A  history  of  the  development  of  the  minimum 
guidelines  is  discussed  at  47  Fed.  Reg.  33862- 
33864  (1982). 

133  Id.  at  33862  (to  be  codified  at  36  C.F.R.  pt. 
1190). 

134  See  General  Services  Administration,  41 
C.F.R.  101-19.600-.607  (1982);  Department  of 
Housing  and  Urban  Development,  24  C.F.R.  pt. 
40  (1982);  Department  of  Defense,  4279-1-M 
"Construction  Criteria,"  June  1,  1978,  para.  5-6; 
U.S.  Postal  Service,  Postal  Service  Contracting 
Manual,  Publication  41  §14-518.4,  as  amended  by 
handbook  RE-4,  November  1979,  39  C.F.R. 
601.100  (1982). 


Federal  accessibility  regulations  through 
administrative  proceedings  as  well  as 
litigation,136  and  it  has  used  this  authori- 
ty to  hold  several  administrative  enforce- 
ment hearings  on  accessibilty  issues  in 
Federal  buildings.137  The  Board  is  addi- 
tionally empowered  to  study  and  work 
for  the  elimination  of  attitudinal,  archi- 
tectural, and  communications  barriers  to 
disabled  people.138 

Constitutional  Protections  for 
Handicapped  Persons 

Handicapped  people  have  also  used 
constitutional  rights  to  challenge  gov- 
ernment actions,  concentrating  initially 
on  rights  to  equal  educational  opportuni- 
ty139 and  to  treatment  for  those  involun- 
tarily confined  to  institutions  for  the 
mentally  disabled.140  The  most  frequent- 
ly used  constitutional  bases  are  the  guar- 

135  29  U.S.C.  §792(b)(l),(7)  (Supp.  V  1981).  See 
also  47  Fed.  Reg.  33862  (1982). 

136  29  U.S.C.  §792(d)  (Supp.  V  1981). 

137  See  U.S.,  Architectural  and  Transportation 
Barriers  Compliance  Board,  Report  of  the  Board 
to  the  President  for  1982,  pp.  9-10. 

138  29  U.S.C.  §792(b)(2),  (3)  (Supp.  V  1981). 

139  See,  e.g.,  Mills  v.  Board  of  Educ.  of  D.C.,  348  F. 
Supp  866  (D.  D.C.  1972);  Pennsylvania  Ass'n  for 
Retarded  Children  v.  Pennsylvania,  334  F.  Supp. 
1257  (E.D.  Pa.  1971),  343  F.  Supp.  279  (E.D.  Pa. 
1972).  The  constitutional  principle  that  handi- 
capped children  are  entitled  to  the  same  free, 
appropriate  public  education  received  by  non- 
handicapped  children  was  incorporated  into  the 
Education  for  All  Handicapped  Children  Act. 
Hendrick  Hudson  Cent.  School  Dist.  v.  Rowley, 
102  S.Ct.  3034,  3043-44  (1982). 

140  See,  e.g.,  Wyatt  v.  Stickney,  325  F.  Supp.  781 
(M.D.  Ala.  1971),  affd  in  part  sub  nom.  Wyatt  v. 
Aderholt,  503  F.2d  1305  (5th  Cir.  1974);  Welsch  v. 
Likins,  373  F.  Supp.  487  (D.  Minn.  1974),  affd  in 
part  and  vacated  and  remanded  in  part,  550  F.2d 
1122  (8th  Cir.  1977).  Cases  such  as  these  provided 
some  of  the  legal  foundation  to  the  Developmen- 
tal Disabilities  Assistance  and  Bill  of  Rights  Act. 


62 


antees  of  equal  protection  of  the  law  and 
due  process  of  the  law.141 

Equal  protection  of  the  law  is  the 
constitutional  mandate  that  government 
must  make  only  reasonable  classifica- 
tions that  pursue  legitimate  objectives 
and  may  not  employ  unjustified  distinc- 
tions to  disadvantage  groups  of  people. 
Equal  protection  guarantees  often  de- 
pend upon  the  choice  of  which  of  several 
standards  the  courts  apply  to  govern- 
mental action  that  classifies  people  and 
causes  differential  treatment  of  the 
classes. 

When  the  government  classifies  people 
on  certain  bases,  such  as  race  or  national 
origin,  the  courts  have  found  such  classi- 
fications extremely  "suspect."142  The 
courts  have  viewed  with  similar  suspi- 
cion governmental  activity  that  inter- 
feres with  fundamental  rights,  such  as 

141  Those  guarantees  are  contained  in  U.S. 
Const.,  Amend.  XIV,  §1,  which  provides  in  perti- 
nent part:  "No  state  shall.  .  .deprive  any  person 
of  life,  liberty,  or  property  without  due  process  of 
law,  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws."  Both 
guarantees  also  apply  to  the  Federal  Govern- 
ment through  the  fifth  amendment.  Boiling  v. 
Sharpe,  347  U.S.  497  (1954).  Due  process  and 
equal  protection  are  not  the  only  constitutional 
protections  that  have  been  used  by  handicapped 
persons.  Other  claims  include  the  8th  amend- 
ment's prohibition  against  cruel  and  unusual 
punishment,  New  York  State  Ass'n  for  Retarded 
Children  v.  Rockefeller,  357  F.  Supp.  752,  764 
(E.D.  N.Y.  1973);  the  13th  amendment's  prohibi- 
tion against  involuntary  servitude  as  prohibiting 
forced  unpaid  labor  in  State  institutions,  e.g., 
Jobson  v.  Henne,  355  F.2d  129  (2d  Cir.  1966);  the 
constitutionally  based  right  to  privacy,  e.g.,  Su- 
perintendent of  Belchertown  v.  Saikewicz,  373 
Mass.  728,  370  N.E.2d  417,  424-27,  435  (1977). 

142  See,  e.g,  Loving  v.  Virginia,  388  U.S.  1,  9 
(1967);  Oyama  v.  California,  332  U.S.  633,  646 
(1948).  Alienage  has  also  been  held  to  be  a 
suspect  classification.  See,  e.g,  Graham  v.  Rich- 
ardson, 403  U.S.  365  (1971). 


voting  or  the  right  to  interstate  travel.143 
In  other  contexts,  particularly  sex  dis- 
crimination cases,  the  Supreme  Court 
has  applied  a  "moderate  scrutiny"  stan- 
dard.144 In  situations  where  neither  a 
suspect  class  nor  fundamental  rights 
were  at  stake,  the  Court  has  used  a 
"rational  basis"  test.  All  the  rational 
basis  test  requires  is  that  a  classification 
be  reasonably  related  to  a  legitimate 
governmental  objective.145 

Little  uniformity  has  emerged  in  vari- 
ous court  decisions  in  regard  to  the 
appropriate  equal  protection  standard 
applicable  to  classifications  that  disad- 
vantage handicapped  persons.  The  courts 
that  have  considered  equal  protection 
challenges  by  handicapped  plaintiffs 
have  employed  every  imaginable  stan- 
dard.146 Handicapped  persons  have, 
nonetheless,  been  successful  in  using  the 

143  See,  e.g.,  Dunn  v.  Blumstein,  405  U.S.  330 
(1972);  Memorial  Hosp.  v.  Maricopa  County,  415 
U.S.  250  (1974). 

144  See,  e.g,  Reed  v.  Reed,  404  U.S.  71  (1971).  In 
the  1970s  and  1980s  the  Supreme  Court  appears 
to  have  deviated  to  some  degree  from  the  two- 
tiered  approach  of  reference  to  reasonable  gov- 
ernmental classification  and  interference  with 
suspect  classification.  Although  generally  refus- 
ing to  expand  the  list  of  classifications  considered 
suspect  or  to  recognize  any  additional  fundamen- 
tal rights,  the  Court  has  added  new  teeth  to  the 
rational  basis  test  and  in  several  cases  has 
applied  what  amounts  to  "moderate"  scrutiny  of 
classifications  challenged  as  being  in  violation  of 
equal  protection.  See,  e.g.,  Gunther,  "The  Su- 
preme Court,  1971  Term  Foreword:  In  Search  of 
Evolving  Doctrine  on  a  Changing  Court:  A  Model 
for  a  Newer  Equal  Protection,"  Harv.  L.  Rev.,  vol. 
80  (1972),  p.  1;  Gerald  Nowak,  "Realigning  the 
Standards  of  Review  Under  the  Equal  Protection 
Guarantee — Prohibited,  Neutral,  and  Permissive 
Classifications,"  Geo.  L.J.,  vol.  86  (1974),  p.  1071. 

145  See  McDonald  v.  Board  of  Election,  394  U.S. 
802,  809  (1969). 

146  Some  of  the  rulings  have  found  a  violation  of 
equal  protection  through  application  of  the  mini- 


63 


equal  protection  clause  to  gain  many 
significant  rights. 

The  most  far-reaching  equal  protec- 
tion decisions  for  handicapped  persons 
have  come  in  the  area  of  education. 
Many  courts  have  ruled  that  the  equal 
protection  clause  requires  the  provision 
of  a  free,  appropriate,  public  education 
for  all  handicapped  children  as  is  provid- 
ed to  nonhandicapped  children.147  Equal 
protection  has  also  been  used  to  chal- 
lenge commitment  procedures  and  condi- 
tions of  confinement  in  mental  institu- 
tions.148 In  Jackson  v.  Indiana,149  the 
U.S.  Supreme  Court  struck  down  a  State 
law  that  permitted  mentally  incompe- 
tent criminal  defendants  to  be  commit- 
ted to  an  institution  indefinitely  until 

mal  "rational  basis  test."  See,  e.g.,  Vecchione  v. 
Wohlgemuth,  377  F.  Supp.  1361,  1368  (E.D.  Pa. 
1974),  affd,  558  F.2d  150  (3d  Cir.),  cert,  denied, 
434  U.S.  943  (1977);  Pennsylvania  Ass'n  for 
Retarded  Children  v.  Pennsylvania,  343  F.  Supp. 
279,  297  (E.D.  Pa.  1972);  In  re  Downey,  72  Misc.2d 
772,  340  N.Y.S.2d  687  (1973).  Some  cases  have 
applied  the  emerging  "moderate  scrutiny  test"  of 
equal  protection.  See,  e.g.,  Frederick  L.  v. 
Thomas,  408  F.  Supp.  832,  836  (E.D.  Pa.  1976);  In 
re  Jessup,  85  Misc.2d  575,  379  N.Y.S.2d  626  (Fam. 
Ct.  1975).  Several  decisions  have  applied  "strict 
scrutiny"  because  a  fundamental  right  was  at 
stake.  See,  e.g.,  Stoner  v.  Miller,  377  F.  Supp.  177, 
180  (E.D.  N.Y.  1974)  (right  to  travel);  North 
Carolina  Ass'n  for  Retarded  Children  v.  North 
Carolina,  420  F.  Supp.  451,  458  (M.D.  N.C.  1976) 
(procreation).  Many  cases  have  failed  to  specify 
what  equal  protection  standard  was  being  ap- 
plied. See,  e.g.,  Jackson  v.  Indiana,  406  U.S.  715 
(1972);  In  re  H.,  72  Misc.2d  59,  337  N.Y.S.2d  969 
(1972);  Panitch  v.  Wisconsin,  444  F.  Supp.  320 
(E.D.  Wis.  1977);  Mills  v.  Board  of  Educ.  of  D.C., 
348  F.  Supp.  866  (D.D.C.  1972).  At  least  one  court 
has  held  specifically  that  handicapped  persons 
constitute  a  "suspect  class"  entitled  to  strict 
scrutiny  under  the  equal  protection  clause:  In  re 
G.H.,  218  N.W.2d  441,  447  (N.  Dak.  1974).  Several 
other  courts  have  indicated  their  willingness  to 
make  such  a  finding  upon  an  appropriate  show- 
ing. See,  e.g.,  Fialkowski  v.  Shapp,  405  F.  Supp. 
946,  958-59  (E.D.  Pa.   1975);  Lora  v.  Board  of 


they  were  determined  to  be  competent  to 
stand  trial.  Equal  protection  challenges 
have  also  been  effective  in  eliminating 
restrictions  upon  mentally  retarded  per- 
sons' right  to  vote150  and  restrictions  on 
occupancy  of  hotels  and  boarding  hous- 
es.151 

The  due  process  clause  of  the  14th 
amendment  has  been  used  in  various 
ways  to  secure  rights  for  handicapped 
people.  One  of  the  most  familiar  require- 
ments imposed  by  the  due  process  clause 
is  that  the  government  may  infringe 
upon  neither  property,  life,  nor  liberty 
without  affording  adequate  notice  and 
an  opportunity  to  be  heard.152  Handi- 
capped persons  have  successfully  used 
this  right  to  procedural  due  process  to 

Educ.  of  N.Y,  456  F.  Supp.  1211,  1275  (E.D.  N.Y. 
1978).  See  also,  Note,  "Mental  Illness:  A  Suspect 
Classification?"  Yale  L.J.,  vol.  83  (1974),  p.  237; 
Marcia  Pearce  Burgdorf  and  Robert  Burgdorf, 
Jr.,  "A  History  of  Unequal  Treatment:  The 
Qualifications  of  Handicapped  Persons  as  a  'Sus- 
pect Class'  under  the  Equal  Protection  Clause," 
Santa  Clara  Lawyer,  vol.  15  (1975),  pp.  899-910. 
But  several  other  courts  have  expressly  held  that 
handicapped  persons  are  not  a  suspect  class.  See, 
e.g.,  Massachusetts  Coalition  of  Citizens  with 
Disabilities  v.  Civil  Defense  Agency,  649  F.2d  71 
(1st  Cir.  1981);  Brown  v.  Sibley,  650  F.2d  760  (5th 
Cir.  1981);  Simon  v.  St.  Louis  County,  656  F.2d 
316  (8th  Cir.  1981),  cert,  denied,  455  U.S.  976 
(1982). 

147  See,  e.g,  Mills  v.  Board  of  Educ.  of  D.C.,  348  F. 
Supp  866  (D.D.C.  1972);  Pennsylvania  Ass'n  for 
Retarded  Children  v.  Pennsylvania,  334  F.  Supp. 
1257  (E.D.  Pa.  1971),  343  F.  Supp.  279  (E.D.  Pa. 
1972).  See  also  Hendrick  Hudson  Cent.  School 
Dist.  v.  Rowley,  102  S.Ct.  3034,  3043-44  (1982). 

148  See,  e.g,  Wyatt  v.  Stickney,  325  F.  Supp.  781 
(M.D.  Ala.  1971)  (right  to  treatment  could  have 
been  found  under  equal  protection  clause). 

149  406  U.S.  715  (1972). 

150  Boyd  v.  Board  of  Registrars  of  Voters,  368 
Mass.  631,  334  N.E.  2d  629  (1975). 

151  Stoner  v.  Miller,  377  F.  Supp.  177  (E.D.  N.Y. 
1974). 

152  See,  e.g,  Goldberg  v.  Kelly,  397  U.S.  254 
(1970). 


64 


contest  numerous  governmental  actions, 
including:  challenges  to  commitment 
procedings  for  the  mentally  ill  and  men- 
tally retarded;153  placement,  denials,  or 
transfers  concerning  special  education;154 
sterilization;155  provision  or  denial  of 
life-prolonging  medical  services;156  and 
employment.157 

Apart  from  its  procedural  protections, 
the  due  process  clause  has  also  been  held 
to  provide  substantive  rights.  Advocates 
for  mentally  disabled  persons  have  also 
argued  for  a  right  to  treatment,  training, 
or  habilitation  when  the  State  has  de- 
nied them  their  liberty.  Recently,  the 
U.S.  Supreme  Court  in  Youngberg  v. 
Romeo156  decided  that  those  persons  who 
have  been  involuntarily  committed  to 
mental  retardation  facilities  have  the 
right  under  the  due  process  clause  to 
reasonably  safe  conditions  of  confine- 
ment, freedom  from  unreasonable  bodily 
restraints,  and  such  minimally  adequate 
training  as  may  reasonably  be  required 
by  these  liberty  interests.  Before  this 
ruling,  numerous  Federal  court  decisions 
held  that  when  the  State  commits  some- 
one involuntarily  to  an  institution  on  the 
promise  of  providing  treatment,  the 
State  is  constitutionally  required  by  the 

153  Jackson  v.  Indiana,  406  U.S.  715  (1972). 

154  Mills  v.  Board  of  Educ.  of  D.C.,  348  F.  Supp 
866  (D.D.C.  1972);  Pennsylvania  Ass'n  for  Retard- 
ed Children  v.  Pennsylvania,  343  F.  Supp.  279 
(E.D.  Pa.  1972);  Hairston  v.  Drosick,  423  F.  Supp. 
180  (S.D.  W.Va.  1976). 

155  Kg,  Wyatt  v.  Aderholt,  368  F.  Supp.  1382 
(M.D.  Ala.  1973). 

156  E.g.,  Superintendent  of  Belchertown  v.  Saik- 
ewicz,  373  Mass.  728,  370  N.E.  2d  417,  432-435 
(1977). 

157  Kg,  Bevan  v.  New  York  State  Teachers' 
Retirement  Sys.,  74  Misc.2d  443,  345  N.Y.S.2d  921 
(N.Y.  Sup.  Ct.  1973),  affd  as  modified,  44  A.D.2d 
163,  355  N.Y.S.2d  185  (N.Y.  App.  Div.  1974). 

158  102  S.Ct.  2452  (1982). 


due  process  clause  to  provide  such  treat- 
ment.159 

The  due  process  clause  has  also  been 
construed  to  prohibit  certain  governmen- 
tal classifications  that  exclude  all  per- 
sons with  a  particular  disability  from 
holding  a  particular  job.  In  Gurmankin 
v.  Costanzo,160  the  Philadelphia  school 
district  established  an  "irrebutable  pre- 
sumption" that  Gurmankin's  blindness 
rendered  her  incompetent  to  teach  sight- 
ed students  and  refused  her  permission 
to  take  the  qualifying  examination  de- 
spite the  fact  that  she  had  fulfilled  all 
other  requirements.  The  Third  Circuit 
held  that  by  arbitrarily  denying  Gur- 
mankin the  right  to  take  the  examina- 
tion, the  board  had  violated  her  due 
process  rights.161  The  continued  validity 
of  this  due  process  theory  may  be  limit- 
ed, however,  to  situations  where  the  rule 
or  policy  does  not  sufficiently  relate  to 
skills  actually  needed  to  perform  the  job 
in  question.162 

Finally,  some  statutes  and  ordinances 
affecting  handicapped  people  have  been 
successfully  challenged  under  the  due 
process  clause  as  being  too  vague.  Exam- 
ples include  ordinances  restricting  occu- 

159  See,  e.g,  Wyatt  v.  Stickney,  325  F.  Supp.  781 
(M.D.  Ala.  1971),  affd  sub  nom.,  Wyatt  v.  Ader- 
holt, 503  F.2d  1305  (5th  Cir.  1974);  Welsch  v. 
Likins,  373  F.  Supp.  487  (D.  Minn.  1974),  affd  in 
part  and  vacated  and  remanded  in  part,  550  F.2d 
1122  (8th  Cir.  1974). 

160  411  F.  Supp.  982  (E.D.  Pa.  1976),  affd,  556 
F.2d  184  (3d.  Cir.  1977). 

161  556  F.2d  at  188,  vacated  on  other  grounds,  626 
F.2d  1115  (3d  Cir.  1980),  cert,  denied,  450  U.S.  923 
(1981).  See  also  Davis  v.  Bucher,  451  F.  Supp.  791 
(E.D.  Pa.  1978);  Duran  v.  City  of  Tampa,  430  F. 
Supp.  75  (M.D.  Fla.  1977);  Drennon  v.  Philadel- 
phia Gen.  Hosp.,  428  F.  Supp.  809  (E.D.  Pa.  1977). 

162  New  York  Transit  Auth.  v.  Beazer,  440  U.S. 
568,  592  &  n.  38  (1979). 


65 


pancy  in  hotels  and  boarding  and  room- 
ing houses,163  statutes  authorizing  psy- 
chosurgery and  shock  therapy,164  and 
statutes  authorizing  termination  of  pa- 
rental rights.165 

Although  the  constitutional  mandates 
of  equal  protection  and  due  process  of 
law  are  limited,  they  provide  a  minimum 
foundation  upon  which  Congress  built  by 
enacting  the  Rehabilitation  Act  of  1973, 
the  Education  for  All  Handicapped  Chil- 
dren Act,  the  Developmental  Disablities 
Assistance  and  Bill  of  Rights  Act,  and 

163  Stoner  v.  Miller,  377  F.  Supp.  177  (E.D.  N.Y. 
1974). 

164  Aden  v.  Younger,  57  Cal.  App.  3d  662,  129 
Cal.  Rptr.  535,  543-45  (1976). 


the  Architectural  Barriers  Act  of  1968. 
Taken  together,  these  laws  demonstrate 
a  strong  and  consistent  congressional 
purpose  to  end  discrimination  on  the 
basis  of  handicap  in  employment,  educa- 
tion, and  all  public  services.  Clearly, 
Congress  sought  to  ensure  that  handi- 
capped persons  obtain  adequate  and  ef- 
fective training,  education,  and  support 
services,  enabling  them  to  live  in  the 
most  integrated  and  independent  man- 
ner consistent  with  their  own  capabili- 
ties. 

165  Alsager  v.  District  Court  of  Polk  County,  406 
F.  Supp.  10  (D.  la.  1975). 


66 


Chapter  4 

The  Goal  of  Full  Participation 


Society  has  been  able  to  choose  among 
distinct  alternatives  in  the  way  it  treats 
people  with  handicaps.1  A  seminal  law 
review  article,  published  in  1966,  com- 
pared the  custodial  and  integrative  ap- 
proaches: 


The  older  custodial  attitude  is  typi- 
cally expressed  in  policies  of  segre- 
gation and  shelter,  of  special  treat- 
ment and  separate  institutions.  The 
newer  integrative  approach  focuses 
attention  upon  the  needs  of  the 
disabled  as  those  of  normal  and 
ordinary  people  caught  at  a  physical 
and  social  disadvantage.  The  effect 
of  custodialism  is  to  magnify  physi- 
cal differences  into  qualitative  dis- 
tinctions; the  effect  of  integration- 
ism  is  to  maximize  similarity,  nor- 


1  For  a  discussion  of  the  historical  evolution  of 
public  policy  toward  handicapped  persons,  from 
indifference  to  segregation  in  residential  institu- 
tions to  income  maintenance  support  to  current 
policies  of  independence  and  integration,  see 
Lloyd  Burton,  "Federal  Government  Assistance 
for  Disabled  Persons:  Law  and  Policy  in  Uncer- 
tain Transition,"  Law  Reform  in  Disability 
Rights,  vol.  2  (1981),  pp.  B-3  to  B-18. 

2  Jacobus  ten  Broek  and  Floyd  Matson,  "The 


mality,  and  equality  as  between  the 
disabled  and  the  able-bodied.2 


In  contrast  to  custodialism,  the  integra- 
tive approach  emphasizes  handicapped 
people's  "potential  for  full  participation 
as  equals  in  the  social  and  economic  life 
of  the  community."3 

Government  bodies  at  all  levels  of 
modern  American  society  have,  with 
relative  consistency,  chosen  full  partici- 
pation4 as  the  desired  objective  for 
handicapped  people.  Based  on  the  under- 
standing that  handicapped  people  have  a 
"basic  human  right  of  full  participation 
in  life  and  society,"5  Congress  has  made 
the  following  findings: 


the  benefits  and  fundamental  rights 
of  this  society  are  often  denied  those 

Disabled  and  the  Law  of  Welfare,"  Calif.  L.  Rev., 
vol.  54  (1966),  pp.  809,  816. 

3  Ibid.,  p.  815. 

4  See,  e.g.,  Note,  "Accommodating  the  Handi- 
capped: The  Meaning  of  Discrimination  Under 
Section  504  of  the  Rehabilitation  Act,"  N.Y.U.  L. 
Rev.,  vol.  55  (November  1980),  pp.  898-99. 

5  S.  Rep.  No.  1297,  93d  Cong.,  2d  Sess.  56, 
reprinted  in  1974  U.S.  Code  Cong,  and  Ad.  News 
6373,  6406  (emphasis  added). 


67 


individuals  with  mental  and  physi- 
cal handicaps;.  .  . 


it  is  of  critical  importance  to  this 
Nation  that  equality  of  opportunity, 
equal  access  to  all  aspects  of  society 
and  equal  rights  guaranteed  by  the 
Constitution  of  the  United  States  be 
provided  to  all  individuals  with 
handicaps;.  .  . 

it  is  essential.  .  .that  the  complete 
integration  of  all  individuals  with 
handicaps  into  normal  community 
living,  working,  and  service  patterns 
be  held  as  the  final  objective.  .  .  .6 


6  29  U.S.C.  §701  Note  (1976). 

7  S.  Rep.  No.  890,  95th  Cong.,  2d  Sess.  39  (1978) 
(emphasis  added). 

8  Many  State  statutes  adopt  as  a  specific  decla- 
ration of  policy  that  the  State  "shall  encourage 
and  enable  handicapped  persons  to  participate 
fully  in  the  social  and  economic  life  of  the  State." 
E.g.,  Ala.  Code  §21-7-1  (1977);  Cal.  Gov.  Code 
§19230,  subd.  (a);  Colo.  Rev.  Stat.  §24-34-801 
(cum.  supp.  1981);  Ga.  Code  Ann.  §30-3-1  (1982); 
Idaho  Code  §56-701  (1976);  111.  Ann.  Stat.  Ch.  23 
§3362  (cum.  supp.  1982);  Iowa  Code  Ann.  §601D.l 
(West  1975);  Me.  Rev.  Stats.  Ann.  Tit.  17  §1311 
(1979);  Md.  Ann.  Code  Art.  30  §33  (cum.  supp. 
1981);  N.C.  Gen.  Stat.  §168-1  (1982);  N.D.  Cent. 
Code  25-13-01  (1978);  S.C.  Code  §10-5-210  and 
§43-33-10  (1977);  Tex.  Human  Resources  Code 
Ann.  Tit.  8  §121.0001  (1980);  Va.  Code  §63.1-171.1 
(1980)  (emphasis  added).  Other  States  use  slight- 
ly different  language  to  the  same  effect.  Oregon, 
for  example,  guarantees  handicapped  persons 
"the  fullest  possible  participation  in  the  social 
and  economic  life  of  the  state."  Or.  Rev.  Stat. 
§659.405  (1981).  The  District  of  Columbia  recog- 
nizes the  right  of  every  individual  to  "have  an 
equal  opportunity  to  participate  fully  in  the 
economic,  cultural,  and  intellectual  life  of  the 
District  and  to  have  an  equal  opportunity  to 
participate  in  all  aspects  of  life."  D.C.  Code  Ann. 
§1-2511  (1981).  Louisiana  guarantees  handi- 
capped people  "an  equal  opportunity  to  enjoy  a 
full  and  productive  life,"  La.  Rev.  Stat.  Ann.  Ch. 
30  §2252  (1982),  and  "to  secure  an  education,  to 
find  and  maintain  gainful  employment,  to  live 


In  enacting  and  amending  section  504  of 
the  Rehabilitation  Act  of  1973,  Congress 
"made  a  commitment  to  the  handi- 
capped, that,  to  the  maximum  extent 
possible  they  shall  be  fully  integrated 
into  the  mainstream  of  life  in  America."7 

Numerous  State  laws  have  reiterated 
the  Federal  objective  of  full  participation 
or  total  integration  of  handicapped  per- 
sons.8 Courts  have  recognized  this  goal: 
"Both  the  state  and  federal  governments 
now  pursue  the  commendable  goal  of 
total  integration  of  handicapped  persons 
into  the  mainstream  of  society."9 

independently,  and  to  otherwise  participate  fully 
in  society."  La.  Rev.  Stat.  Ann.  Ch.  8  §1731  (1982). 
9  In  re  Marriage  of  Carney,  157  Cal.  Rptr.  383, 
598  P.2d  36,  44  (1979)  (emphasis  added);  see  also 
Borden  v.  Rohr,  no.  C  2-75-844,  Excerpts  of 
Proceedings,  Dec.  30,  1975  (S.D.  Oh.  1975),  report- 
ed in  Robert  Burgdorf,  ed.,  The  Legal  Rights  of 
Handicapped  Persons  (Baltimore:  Brookes,  1980), 
pp.  1105-06  (hereafter  cited  as  Legal  Rights  of 
Handicapped  Persons).  In  a  recent  decision,  the 
U.S.  Supreme  Court  declared  in  regard  to  the 
Rehabilitation  Act  of  1973:  "[Tjhat  statute  con- 
firms the  federal  interest  in  developing  the 
opportunities  for  all  individuals  with  handicaps 
to  live  full  and  independent  lives."  Community 
Television  of  Southern  Cal.  v.  Gottfried,  103  S.Ct. 
885,  892  (1983). 

Such  sentiments  have  been  echoed  on  the  inter- 
national level  by  United  Nations  declarations.  In 
1975  the  United  Nations  General  Assembly 
adopted  and  proclaimed  its  Declaration  on  the 
Rights  of  Disabled  Persons;  Resolution  3447's 
goals  include  enabling  handicapped  people  to 
"become  as  self-reliant  as  possible"  and  promot- 
ing measures  that  will  "hasten  the  process  of 
their  social  integration  or  reintegration."  G.A. 
Res.  3447,  30  U.N.  GAOR,  Supp.  (no.  34)  92,  U.N. 
Doc.  A/10034  (1975).  In  designating  1981  as  the 
International  Year  of  Disabled  Persons,  the  Gen- 
eral Assembly  declared  "full  participation  and 
equality"  as  the  year's  central  theme.  G.A.  Res. 
31/123,  31  U.N.  GAOR  Supp.  (no.  39)  115,  U.N. 
Doc.  A/31/39  (1976)  (emphasis  added).  In  the 
United  States,  the  concept  of  "full  participation" 


68 


Setting  this  goal,  of  course,  does  not 
mandate  the  means  of  its  accomplish- 
ment. The  recurring  phrases,  "full  par- 
ticipation" and  "total  integration,"  how- 
ever, delineate  the  ultimate  target 
toward  which  we  may  direct  specific 
conduct,  policies,  and  practices  and 
against  which  we  may  measure  progress. 

The  Costs  and  Benefits  of  Full 
Participation 

There  are  a  number  of  approaches  that 
our  society  could  have  chosen  in  working 
with  the  handicapped  people.  For  in- 
stance, it  might  have  done  nothing  and 
adopted  a  Social  Darwinist  view  of  sur- 
vival of  the  fittest.10  Or  it  might  have 
continued  to  pursue  the  custodial  ap- 
proach of  sheltering  and  segregating. 
Another  alternative  might  have  been  to 
guarantee  each  handicapped  person  a 
certain  minimum  level  of  service  and 
opportunity  to  ensure  a  minimally  ade- 
quate quality  of  life.  Under  such  a 
scheme,  each  handicapped  person  might 
have  been  assured  an  appropriate 
"niche"  in  society,  with  rights,  for  in- 
stance, to  a  job,  housing,  essential  medi- 
cal treatment,  and  transportation.  Or 
perhaps  an  even  more  extreme  alterna- 
tive would  have  been  to  provide  handi- 

was  interpreted  as  meaning  "mainstreaming  the 
world's  400  million  disabled  persons  into  every 
aspect  of  society."  Stuart  Eizenstat,  Counselor  to 
President  Carter,  address  to  the  U.S.  Planning 
Council  for  the  U.N.  Year  of  Disabled  Persons, 
Washington,  D.C.,  June  29,  1979,  quoted  in  Stan- 
ley S.  Herr,  "Rights  of  Disabled  Persons:  Interna- 
tional Principles  and  American  Experiences," 
Colum.  Human  Rights  L.  Rev.,  vol.  12  (1980). 
Handicapped  persons  and  their  advocates  have 
concurred  in  such  statements  of  the  societal  goal: 
"Total  Integration  is  the  number  one  priority." 
Max  Starkloff,  testimony,  hearing  before  the 
Architectural  and  Transportation  Barriers  Com- 
pliance Board,   Chicago,   111.,  June  9-10,   1975, 


capped  people  with  all  the  resources, 
assistance,  and  restructuring  necessary 
to  permit  them  to  pursue  any  activity, 
vocation,  and  way  of  life  they  chose. 

Instead  of  these  alternatives,  our  soci- 
ety has  chosen  to  try  to  provide  handi- 
capped people  fair  and  equal  chances  to 
participate  fully  in  economic  competition 
and  in  opportunities  for  education,  hous- 
ing, transportation,  health  care,  and  oth- 
er services  and  benefits  available  to  most 
people. 

Few  would  argue  against  a  general 
goal  of  increasing  handicapped  people's 
participation,  particularly  in  situations 
where  it  can  be  pursued  cheaply  and 
easily.  Where  costs  appear  to  be  more 
substantial,  however,  specific  programs 
for  achieving  full  participation  by  prohi- 
biting discrimination  and  providing  es- 
sential services  are  sometimes  ques- 
tioned. Many  such  initiatives,  particular- 
ly civil  rights  laws  proscribing  discrimi- 
nation against  handicapped  people,  can 
be  justified  as  matters  of  simple  equity 
and  basic  human  rights  to  which  cost 
should  not  be  used  as  an  excuse.  General- 
ly, the  cost  of  eliminating  discriminatory 
practices  does  not  justify  continuing  to 
discriminate,  although  cost  may  be  a 
legitimate  factor  in  choosing  among  vari- 

quoted  in  U.S.,  Architectural  and  Transportation 
Barriers  Compliance  Board,  Freedom  of  Choice: 
Report  to  the  President  and  Congress  on  Housing 
Needs  of  Handicapped  Individuals  (1976),  vol.  2, 
pp.  1-2  ,  also  quoted  with  approval  in  Kent  Hull, 
The  Rights  of  Physically  Handicapped  People 
(New  York:  Avon  Books,  1979),  pp.  33-34  (empha- 
sis added).  Some  business  leaders  have  also 
advocated  the  goal  of  full  participation.  See  Bob 
Gatty,  "Business  Finds  Profit  in  Hiring  the 
Disabled,"  Nation's  Business,  August  1981,  pp. 
30-31,  quoting  Xerox  Corporation  President  Da- 
vid J.  Kearns. 

10  See  Garrity  v.  Gallen,  522  F.  Supp.  171,  207 
(D.N.H.  1981). 


69 


ous  alternatives  for  remedying  discrimi- 
nation. 

Some  have  argued,  however,  that  ac- 
commodations to  permit  participation  by 
handicapped  persons  may  simply  cost  too 
much  for  society  to  undertake  without 
financial  detriment  to  other  citizens.11  A 
1979  New  York  Times  editorial  voiced 
such  concerns: 


Do  the  30  million  Americans  afflict- 
ed with  physical  or  mental  handi- 
caps have  a  right  of  access,  no  mat- 
ter what  the  cost,  to  all  publicly 
sponsored  activities?  That  is  now  a 
central  question  because  the  price  of 
such  access  for  the  disabled  promises 
to  become  very  great.12 

Time  magazine  discussed  the  costs  of 
implementing  accommodation  require- 
ments and  concluded:  "Overzealous  en- 
forcement could  drive  well-meaning  in- 
stitutions to  distraction,  if  not  out  of 
business,  and  thus  handicap  society  as  a 
whole."13 

In  response  to  such  reservations  con- 
cerning costs,  the  Congress  and  regulato- 
ry agencies  have  carefully  considered  the 
cost  implications  of  nondiscrimination 
requirements  and  other  government  ini- 

11  Henry  Fairlie,  "We're  Overdoing  Help  For 
the  Handicapped,"  The  Washington  Post,  June  1, 
1980,  p.  D-l;  Steven  V.  Roberts,  "Harder  Times 
Make  Social  Spenders  Hard  Minded,"  The  New 
York  Times,  Aug.  3,  1980,  p.  E-3;  Timothy  B. 
Clark,  "Regulation  Gone  Amok:  How  Many  Bil- 
lions for  Wheelchair  Transit?"  AEI  Journal  on 
Government  and  Society /Regulation,  March- 
April  1980,  p.  47. 

12  Editorial,  "Must  Every  Bus  Kneel  to  the 
Disabled?"  New  York  Times,  Nov.  18,  1979,  p.  18- 
E,  quoted  in  John  S.  Hicks,  "Should  Every  Bus 
Kneel?"  Disabled  People  as  Second-Class  Citizens, 
ed.  Myron  G.  Eisenberg,  Cynthia  Griggins,  and 


tiatives  seeking  to  ensure  fuller  partici- 
pation by  handicapped  people.  Practical 
experience  has  shown  that  the  costs  of 
legally  required  accommodations  to  al- 
low handicapped  people's  participation 
are  often  nominal.14  Projected  costs  have 
frequently  proven  to  be  overestimated 
and  contrary  to  common  sense  and  prac- 
ticality.15 Moreover,  the  courts  and 
regulators  have  indicated  that  there  are 
limits  on  the  extent  to  which  accommo- 
dation is  legally  required.16  Excessive 
cost  and  undue  hardship  may,  in  certain 
circumstances,  be  legitimate  excuses  for 
not  making  a  change  or  modification  to 
enhance  the  participation  of  a  handi- 
capped person.  The  U.S.  Supreme  Court 
has  indicated  that  recipients  of  Federal 
financial  assistance  are  not  always  re- 
quired to  make  accommodations  for 
handicapped  people  that  involve  undue 
financial  burdens.17  Federal  regulations 
indicate  that  the  costliness  of  making  an 
accommodation  in  employment  can 
amount  to  an  undue  hardship  that  ex- 
cuses an  employer  from  the  obligation  to 
render  the  accommodation.18  Similarly, 
three  Federal  courts  have  ruled  that 
public  transportation  systems  receiving 
Federal  financial  assistance  are  not  le- 
gally   required   to    make    modifications 

Richard  Duval  (New  York:  Springer  Publishing 
Co.,  1982). 

13  "Helping  the  Handicapped:  Without  Crip- 
pling Institutions,"  Time,  Dec.  5,  1977,  p.  34. 

14  See  chap.  6  in  the  section  entitled  "What  Is 
Reasonable  Accommodation?" 

15  See  examples  discussed  in  the  introduction  to 
this  monograph. 

16  See  chap.  6  in  the  section  entitled  "Limita- 
tions Upon  the  Obligation  to  Accommodate." 

17  Southeastern  Community  College  v.  Davis, 
442  U.S.  397,  412-13  (1979). 

18  45  C.F.R.  §84. 12(c)(3)  (1982);  41  C.F.R.  §60- 
741.6(d)  (1982). 


70 


that  are  too  massive  or  too  costly  in 
order  to  allow  participation  of  handi- 
capped riders.19  In  addition,  a  Federal 
court  of  appeals  has  indicated  that  a 
legal  requirement  to  provide  an  appro- 
priate public  education  for  each  handi- 
capped child  is  not  an  obligation  to 
provide  "the  best  education.  .  .money 
can  buy."20  Thus,  as  interpreted  by  the 
courts  and  regulators,  full  participation 
and  nondiscrimination  do  not  mean  the 
unlimited  expenditure  of  funds  to  assist 
handicapped  people. 

The  costs  of  permitting  handicapped 
people  to  participate  are  most  apparent 
in  times  of  scarce  resources.  The  courts 
have  indicated,  however,  that  budget 
shortages  and  financial  hardships  should 
not  be  disproportionately  borne  by  hand- 
icapped citizens.  In  Mills  v.  Board  of 
Education  of  the  District  of  Columbia,21 
a  Federal  court  declared: 


If  sufficient  funds  are  not  available 
to  finance  all  of  the  services  and 
programs  that  are  needed  and  desir- 
able in  the  system  then  the  available 
funds  must  be  expended  equitably  in 
such  a  manner  that  no  child  is 
entirely  excluded  from  a  publicly 
supported  education  consistent  with 
his  needs  and  ability  to  benefit 
therefrom.  The  inadequacies  of  the 
District  of  Columbia  Public  School 
System  whether  occasioned  by  insuf- 
ficient funding  or  administrative  in- 
efficiency, certainly  cannot  be  per- 


19  See  Dopico  v.  Goldschmidt,  687  F.2d  644,  649- 
50  (2d  Cir.  1982);  American  Pub.  Transit  Ass'n  v. 
Lewis,  655  F.2d  1272,  1278  (D.C.  Cir.  1981);  Rhode 
Island  Handicapped  Action  Comm.  v.  Rhode 
Island  Pub.  Transit  Auth.,  549  F.  Supp.  592,  607 
(D.R.I. 1982). 

20  Hessler  v.  State  Bd.  of  Educ.  of  Md.,  700  F.2d 
134, 139  (4th  Cir.  1983). 


mitted  to  bear  more  heavily  on  the 
"exceptional"  or  handicapped  child 
than  on  the  normal  child.22 


In  Board  of  Education  of  Hendrick  Hud- 
son Central  School  District  v.  Rowley,23 
the   U.S.    Supreme   Court   quoted   this 
language   with    approval   as   setting   a 
"realistic  standard."24 

Any  change  from  the  status  quo  in- 
volves some  costs.  For  social  programs,  it 
is  appropriate  to  consider  the  long  term, 
societal  effects,  rather  than  the  short 
term  costs  of  the  program  with  regard  to 
particular  beneficiaries.  When  viewed  in 
this  broader  perspective,  the  answer  to 
concerns  about  the  costs  of  full  participa- 
tion is  that  Congress,  American  business 
leaders,  and  other  authorities  have  con- 
cluded that  the  costs  of  achieving  full 
participation  are  more  than  offset  by  the 
resulting  societal  benefits. 

From  their  inception,  governmental 
programs  for  handicapped  people  have 
had  interrelated  economic  and  humani- 
tarian purposes.  The  aim  of  early  reha- 
bilitation legislation — to  enable  handi- 
capped people  to  go  to  work  and  contrib- 
ute to  the  gross  national  product  and  the 
tax  coffers — has  remained  a  primary 
goal  of  subsequent  legislative  initia- 
tives.25 In  1963  President  Kennedy  sig- 
nificantly broadened  the  economic  anal- 
ysis of  such  programs  when  he  cited  long 
term  dollar  savings  as  a  partial  justifica- 
tion for  his  proposal  of  a  comprehensive 

21  348  F.  Supp.  866  (D.D.C.  1972). 

22  Id.  at  876. 

23  102  S.Ct.  3034  (1982). 

24  Id.  at  3044,  n.  15. 

25  See  S.  Rep.  No.  318,  93d  Cong.,  1st  Sess., 
reprinted  in,  1973  U.S.  Code  Cong.  &  Adm.  News 
2076,  2082-85. 


71 


program  of  facilities  and  programs  to 
address  mental  illness  and  mental  retar- 
dation. In  a  special  message  to  Congress, 
the  President  noted  the  humanitarian 
values  his  proposal  would  further  but 
also  stressed  statistical  data  to  empha- 
size the  economic  waste  resulting  from 
previous  governmental  policies  toward 
mental  health  and  mental  retardation.26 
Since  then,  in  various  contexts,  the  ratio- 
nale of  programs  for  handicapped  people 


26  "Special  Message  to  the  Congress  on  Mental 
Illness  and  Mental  Retardation,"  Feb.  5,  1963, 
Public  Papers  of  the  Presidents:  John  F.  Kennedy, 
1963,  no.  50,  pp.  126,  127. 

27  See,  e.g.,  Comptroller  General  of  the  United 
States,  "Returning  the  Mentally  Disabled  to  the 
Community:  Government  Needs  to  Do  More," 
Jan.  7,  1977,  pp.  5-6;  S.  Rep.  No.  318,  93d  Cong., 
1st  Sess.  reprinted  in  1973  U.S.  Code  Cong,  and 
Adm.  News  2085-86;  U.S.,  Department  of  Hous- 
ing and  Urban  Development,  "A  Cost-Benefit 
Analysis  of  Accessibility,"  undated;  Discrimina- 
tion Against  Handicapped  Persons:  The  Costs, 
Benefits  and  Inflationary  Impact  of  Implement- 
ing Section  504  of  the  Rehabilitation  Act  of  1973 
Covering  Recipients  of  HEW  Financial  Assis- 
tance, 41  Fed.  Reg.,  app.  B,  20,312  (1976);  Con- 
gressional Budget  Office,  Urban  Transportation 
for  Handicapped  Persons:  Alternative  Federal 
Approaches  (1979)  p.  67;  119  Cong.  Rec.  24,586 
(1973)  (statement  of  Sen.  Cranston);  H.R.  Rep. 
1149,  95th  Cong.,  2d  Sess.  8,  reprinted  in  1978  U.S. 
Code  Cong.  &  Ad.  News  7312,  7320;  Note,  "Ac- 
commodating the  Handicapped:  The  Meaning  of 
Discrimination  Under  Section  504  of  the  Rehabil- 
itation Act,"  N.Y.U.  L.  Rev.,  vol.  55  (1980),  pp. 
900-01;  Note,  "Mending  the  Rehabilitation  Act  of 
1973,"  U  III.  L.  Rev.,  vol.  1982  (1982),  pp.  727-28; 
American  Bar  Association,  Eliminating  Environ- 
mental Barriers  (1979),  p.  2. 

28  Given  initial  impetus  by  the  many  large 
government  expenditures  on  flood  control  and 
national  defense  projects,  cost-benefit  analysis  is 
a  systematic  approach  expressing  in  numerical 
terms  the  costs  and  benefits  of  a  particular 
project  or  program  over  a  period  of  time.  It  seeks 
to  minimize  subjective  evaluations  of  programs 
by  providing  objective,  quantifiable  measure- 
ments that  accurately  reflect  true  value.  See 


has  included  analysis  of  their  economic 
benefits  to  society.27 

The  degree  to  which  cost-benefit  ana- 
lysis28 may  be  applied  appropriately  to 
governmental  programs  for  handicapped 
people  has  been  the  subject  of  controver- 
sy.29 Many  authorities  agree  the  analy- 
sis of  financial  costs  and  benefits  is  an 
important  consideration  in  selecting  the 


generally  Alice  Rivlin,  Systematic  Thinking  for 
Social  Action  (Washington,  D.C.:  The  Brookings 
Institution,  1971),  pp.  56-63;  E.J.  Mishan,  Cost- 
Benefit  Analysis  (New  York:  Praeger,  1976); 
Abdul  Qayum,  Social  Cost-Benefit  Analysis 
(Portland:  The  Ha  Pi  Press,  1978);  Edward  M. 
Gramlich,  Benefit-Cost  Analysis  of  Government 
Programs  (Englewood  Cliffs,  N.J.:  Prentice-Hall, 
1981).  Pursuant  to  Executive  Order  11291,  major 
Federal  regulations  must  be  analyzed  to  assess 
their  costs  and  benefits,  and  unless  otherwise 
required  by  law,  the  most  cost-effective  alterna- 
tive must  be  chosen.  See  Comptroller  General  of 
the  United  States,  Improved  Quality,  Adequate 
Resources,  and  Consistent  Oversight  Needed  If 
Regulatory  Analysis  Is  to  Help  Control  Costs  and 
Regulations  (1982),  p.  1  (hereafter  cited  as  GAO 
Report  on  Regulatory  Analysis  to  Control  Costs). 
29  E.g.,  Note,  "Accommodating  the  Handi- 
capped: The  Meaning  of  Discrimination  Under 
Section  504  of  the  Rehabilitation  Act,"  N.Y.U.  L. 
Rev.,  vol.  55  (November  1980),  p.  901,  n.  101; 
Note,  "Mending  the  Rehabilitation  Act  of  1973," 
U.  III.  L.  Rev.,  vol.  1982  (1982),  pp.  727-28;  Elliott 
Krause,  "Social  Crisis  and  the  Future  of  the 
Disabled,"  in  Disabled  People  as  Second-Class 
Citizens,  pp.  276,  287-88;  Lloyd  Burton,  "On 
Computing  the  Cost  of  Freedom,"  Disability 
Rights  Review,  vol.  1  (3)  (March  1982),  pp.  4-5; 
Leopold  D.  Lippman,  Attitudes  Toward  the 
Handicapped  (Springfield,  111.:  Charles  C. 
Thomas  Publisher,  1972),  pp.  100-02;  President's 
Committee  on  Mental  Retardation,  "A  New 
Approach  to  Decision-Making  in  Human  Man- 
agement Services,"  Changing  Patterns  in  Resi- 
dential Services  for  the  Mentally  Retarded,  ed. 
Robert  B.  Kugel  and  Wolf  Wolfensberger  (Wash- 
ington, D.C.:  1969),  pp.  369-72  (hereafter  cited  as 
"A  New  Approach  to  Decision-Making"). 


72 


most  efficient  alternative  among  several 
choices  for  reaching  a  particular  goal.30 
It  is  not  so  clear,  however,  that  using 
cost-benefit  analysis  to  select  societal 
goals  or  evaluate  social  programs  is 
appropriate.  Cost-benefit  analysis 
strongly  favors  quantifiable  data,  usual- 
ly dollars  and  cents,  on  the  theory  that 
marketplace  prices,  fixed  by  supply  and 
demand,  are  more  reliable  than  subjec- 
tive value  judgments.  Many  social  pro- 
grams exist,  however,  because  the  mar- 
ketplace does  not  adequately  provide 
needed  public  services  or  because  it  is 
unfairly  biased. 

In  such  circumstances,  the  method- 
ological premises  or  applications  of  cost- 
benefit  analysis  may  encounter  diffi- 
culty. Some  authorities  suggest  the  anal- 
ysis of  financial  costs  and  benefits  is 
appropriate  only  for  evaluating  the  effi- 
ciency of  various  approaches  for  reach- 
ing a  selected  goal.31  Since  Congress  has 
determined,    as    a    matter    of   national 


30  See,  e.g.,  Qayum,  Social  Cost  Benefit  Analysis, 
pp.  9-10;  Rivlin,  Systematic  Thinking  for  Social 
Action,  pp.  56-60;  GAO  Report  on  Regulatory 
Analysis  to  Control  Costs,  pp.  12-13;  Congressio- 
nal Budget  Office,  Urban  Transportation  for 
Handicapped  Persons:  Alternative  Federal  Ap- 
proaches, pp.  3-5;  Wolfensberger,  "A  New  Ap- 
proach to  Decision-Making,"  p.  371;  HUD  Cost- 
Benefit  Analysis,  p.  4. 

31  E.g.,  Rivlin,  Systematic  Thinking  for  Social 
Action,  pp.  56-60;  Gerben  DeJong  and  Raymond 
Lifchez,  "Physical  Disability  and  Public  Policy," 
Scientific  American,  vol.  248,  no.  6  (June  1983),  p. 
49;  Burton,  "On  Computing  the  Cost  of  Free- 
dom," Disability  Rights  Review,  March  1982,  pp. 
4-5;  CBO,  Urban  Transportation  for  Handi- 
capped Persons:  Alternative  Federal  Approaches, 
p.  4;  HUD  Cost-Benefit  Analysis,  p.  4;  Qayum, 
Social  Cost  Benefit  Analysis,  pp.  102-05.  Cf 
Mishan,  Cost-Benefit  Analysis,  pp.  382-89. 

32  Eg,  Rivlin,  Systematic  Thinking  for  Social 
Action,  pp.  59-60;  GAO  Report  on  Regulatory 
Analysis  to  Control  Costs,  p.  11;  A.B.A.,  Eliminat- 


policy,  that  handicapped  persons  are 
entitled  as  human  beings  to  the  opportu- 
nity of  full  participation  in  our  society, 
economic  factors  should  be  considered 
only  in  determining  how,  and  not  wheth- 
er, to  pursue  that  goal.  Moreover,  most 
authorities  seem  to  agree  that  financial 
data  cannot  adequately  illustrate  the 
societal  value  of  programs  without  ac- 
counting for  less  easily  quantifiable  ef- 
fects such  as  psychological,  aesthetic, 
and  humanitarian  benefits.32 

Nonetheless,  numerous  authorities 
have  argued  that  economic  advantages 
to  society  support  the  objective  of  handi- 
capped people's  full  participation.33 
There  is  substantial  evidence  that  the 
full  participation  approach  renders  sig- 
nificant economic  benefits.  In  particular, 
governmental  efforts  to  promote  full 
participation  for  handicapped  people  in 
the  areas  of  rehabilitation,  employment, 
education,  residential  programs,  and  the 
elimination   of  environmental   barriers 

ing  Environmental  Barriers,  p.  2;  Burton,  "On 
Computing  the  Cost  of  Freedom,"  pp.  4-5;  Qa- 
yum, Social  Cost  Benefit  Analysis,  pp.  80-106. 
33  See,  e.g.,  Paul  G.  Hearne,  statement,  in  Civil 
Rights  Issues  of  Handicapped  Americans:  Public 
Policy  Implications,  consultation  before  the  U.S. 
Commission  on  Civil  Rights,  Washington,  D.C., 
May  13-14,  1980,  pp.  198,  199-01  (hereafter  cited 
as  Hearne  statement,  Consultation);  "Mending 
the  Rehabilitation  Act,"  pp.  727-28;  Frank  Bowe, 
Rehabilitating  America:  Towards  Independence 
for  Disabled  and  Elderly  People  (New  York: 
Harper  &  Row,  1980);  A.B.A.,  Eliminating  Envi- 
ronmental Barriers,  p.  2;  H.R.  Rep.  1149,  95th 
Cong.  2d  Sess.,  reprinted  in  1978  U.S.  Code  Cong. 
&  Ad.  News  7312,  7320;  119  Cong.  Rec.  S.  3320-21 
(1972)  (statement  of  Sen.  Williams);  Costs,  Bene- 
fits and  Inflationary  Impact  of  Section  504,  41 
Fed.  Reg.  20364-65  (1976).  See  also  "Remarks  at 
the  Annual  Meeting  of  the  President's  Commit- 
tee on  Employment  of  the  Handicapped,"  May  1, 
1980.  Public  Papers  of  the  Presidents:  Jimmy 
Carter,  1980,  pp.  808,  812. 


73 


have    been    advocated    on    economic 
grounds. 


individuals  at  the  time  they  entered 
the  rehabilitation  system. 


Rehabilitation 

In  signing  the  Rehabilitation  Act  of 
1973,  President  Nixon  described  the  re- 
habilitation program  as  having  long 
been  one  of  the  most  successful  of  all 
Federal  grant  activities.34  Numerous 
studies  document  the  success  of  vocation- 
al rehabilitation  programs  in  providing 
training  to  enable  handicapped  people  to 
achieve  independence.35  These  studies 
find  very  high  benefit-to-cost  ratios, 
ranging  from  a  low  of  2  to  1  to  as  high  as 
86  to  l.36   A  1978  House  report  declared: 


[S]everal  cost-benefit  analyses  of  the 
rehabilitation  program  have  been 
conducted  and  although  these  analy- 
ses differ  with  respect  to  methods 
and  assumptions,  they  all  agree  on 
one  crucial  fact — the  benefits  of  the 
rehabilitation  program  are  many 
times  its  costs.  .  .  . 


The  total  annual  earnings  of  303,328 
individuals  rehabilitated  in  fiscal 
year  1976  are  estimated  at  $1,347 
billion — or  a  net  increase  of  $1,101 
billion  over  the  earnings  of  these 


In  addition  to  the  annual  earnings 
that  rehabilitated  individuals  con- 
tribute to  the  GNP,  the  Rehabilita- 
tion Services  Administration  esti- 
mates that  individuals,  as  a  mini- 
mum, will  be  contributing  approxi- 
mately 6  percent  of  their  total  in- 
come to  Federal,  state  and  local 
governments  in  taxes.  This  contribu- 
tion is,  of  course,  in  addition  to  the 
estimated  savings  to  the  government 
through  the  removal  of  clients  from 
the  public  assistance  roles,  by  reduc- 
ing the  dependency  of  clients  or  the 
removal  of  clients  from  institu- 
tions.37 

Based  solely  on  the  increase  in  earnings 
due  to  vocational  rehabilitation  efforts, 
these  economic  advantages  do  not  in- 
clude such  unquantifiable  benefits  as  the 
psychological  well-being  of  clients  and 
their  families. 

Employment 

Similar  economic  benefits  have  been 
attributed  to  government  programs  pro- 
hibiting handicap  discrimination  in  em- 
ployment. As  chapter  2  noted,  dispropor- 
tionately fewer  handicapped  people  than 


34  "Statement  on  Signing  the  Rehabilitation  Act 
of  1973,"  Sept.  23,  1973,  Public  Papers  of  the 
Presidents:  Richard  Nixon,  1973,  no.  274,  p.  823. 

35  See  Sar  A.  Levitan  and  Robert  Taggart,  Jobs 
for  the  Disabled  (Baltimore:  Johns  Hopkins 
Univ.  Press,  1977),  pp.  77-78;  Richard  V.  Burk- 
hauser  and  Robert  H.  Haveman,  Disability  and 
Work:  The  Economics  of  American  Policy  (Balti- 
more: Johns  Hopkins  Univ.  Press,  1982),  pp.  67- 
70,  and  authorities  cited  therein. 

36  Levitan  and  Taggart,  Jobs  for  the  Disabled, 
pp.  77-78. 


37  H.R.  Rep.  No.  1149,  95th  Cong.,  2d  Sess.  8-9 
reprinted  in  1978  U.S.  Code  Cong.  &  Adm.  News 
7319-20. 


74 


nonhandicapped  people  have  jobs.38  Dis- 
crimination also  results  in  lower  earn- 
ings for  handicapped  employees.  Studies 
have  shown  that  a  substantial  portion  of 
the  difference  in  the  wages  of  handi- 
capped and  nonhandicapped  workers  is 
due  to  labor  market  discrimination.39 
One  study  commissioned  by  the  Depart- 
ment of  Health,  Education,  and  Wel- 
fare's Office  for  Civil  Rights  estimated 
that  eliminating  discrimination  against 
handicapped  people  in  HEW-funded 
grant  programs  would  yield  $1  billion 
annually  in  increased  employment  and 
earnings  for  handicapped  people.40  In 
addition  to  increasing  the  gross  national 
product,  it  has  been  estimated  that  such 
an  earnings  increase  by  handicapped 
workers  would  result  in  some  $58  million 
in  additional  tax  revenues  to  Federal, 
State,  and  local  governments.41    Statis- 


tics indicate  that  funds  generated  by 
eliminating  handicap  discrimination 
would  return  more  than  3  dollars  for 
every  dollar  spent.42 

Education 

The  costs  and  benefits  of  education 
programs  for  handicapped  children  have 
been  closely  scrutinized.  A  popular  con- 
cern has  been  whether  the  costs  involved 
in  educating  handicapped  children  are 
justified,  particularly  in  times  of  budget- 
ary constraints.  One  school  district  su- 
perintendent stated  that  educating 
handicapped  children  involves  "fantastic 
costs"  and  that  if  such  special  education 
were  provided,  "other  programs  [would] 
suffer."43  Although  the  data  are  sketchy, 
the  costs  of  educating  a  handicapped 
child  clearly  exceed,  on  the  average,  the 
cost   of  educating   a    nonhandicapped 


38  Hiring  of  handicapped  workers  does  not 
appear  to  pose  a  serious  threat  of  displacing 
nonhandicapped  workers.  Handicapped  people 
share  with  minorities  and  women  the  problem  of 
being  the  first  subjected  to  layoffs  in  times  of 
economic  slowdowns.  In  the  current  recession,  for 
example,  unemployment  among  handicapped 
persons  has  risen  from  a  prerecession  rate  of  45 
percent  to  a  present  estimated  rate  of  50-75 
percent.  President's  Committee  on  Employment 
of  the  Handicapped  estimates  quoted  in  Handi- 
capped Rights  and  Regulations,  Apr.  5,  1983,  p. 
49. 

39  See  William  G.  Johnson  and  James  Lambri- 
nos,  "Employment  Discrimination,"  Society,  vol. 
20,  no.  3  (March-April  1983),  p.  48;  Barbara  L. 
Wolfe,  "How  the  Disabled  Fare  in  the  Labor 
Market,"  Monthly  Labor  Review,  vol.  103,  no.  9 
(September  1980),  pp.  51-52. 

40  Discrimination  Against  Handicapped  Persons: 
The  Costs,  Benefits  and  Inflationary  Impact  of 
Implementing  Section  504  of  the  Rehabilitation 
Act  of  1973  Covering  Recipients  of  HEW  Finan- 
cial Assistance,  41  Fed.  Reg.  20,232  (1976).  See, 
Note,  "Mending  the  Rehabilitation  Act  of  1973," 
p.  727. 


41  S.  Rep.  No.  318,  93d  Cong.,  1st  Sess.,  reprinted 
in  1973  U.S.  Code  Cong.  &  Ad.  News  2076,  2086; 
119  Cong.  Rec.  24,586  (1973)  (statement  of  Sen. 
Cranston).  These  1973  estimates  were  based  upon 
a  minimum  5  percent  of  income  tax  rate.  By  1978 
the  estimated  rate  had  already  risen  to  6  percent. 
See  H.R.  Rep.  No.  1149,  95th  Cong.  2d  Sess., 
reprinted  in  1978  U.S.  Code  Cong.  &  Ad.  News 
7320. 

42  119  Cong.  Rec.  24,586  (1973)  (statement  of  Sen. 
Cranston);  see  also,  Note,  "Mending  the  Rehabili- 
tation Act,"  pp.  727-28. 

43  Steven  V.  Roberts,  "Harder  Times  Make 
Social  Spenders  Hard  Minded,"  The  New  York 
Times,  Aug.  3,  1980,  p.  E-3,  quoting  District  of 
Columbia  School  Superintendent  Vincent  E. 
Reed;  see  also  121  Cong.  Rec.  25537  (July  29, 1975) 
(remarks  of  Rep.  Bauman). 


75 


child.44  The  Education  for  All  Handi- 
capped Children  Act  (EAHCA)  uses  the 
term  "excess  costs"  to  describe  the  addi- 
tional costs  involved  in  educating  handi- 
capped pupils.45  The  portion  of  such 
expenses  underwritten  by  the  Federal 
Government  has  risen  substantially  in 
recent  years,  but  State  and  local  govern- 
ments continue  to  bear  the  bulk  of  these 
costs.46     Some  commentators  have  sug- 


44     The  U.S.  Department  of  Education  has  ob- 
served: 

No  one  knows  for  certain  how  much  special 
education  programming  costs.  While  many 
reasons  exist  for  this  uncertainty,  a  primary 
factor  is  that  education  agencies  seldom  use 
accounting  procedures  that  are  based  on 
particular  types  of  handicapped  children  or 
unique  instructional  programs.  Thus,  costs 
involved  in  providing  for  such  matters  as 
personnel,  services,  and  transportation  for 
handicapped  students  are  comingled  with 
budget  line  categories  for  nonhandicapped 
students. 

U.S.,  Department  of  Education,  To  Assure  the 
Free  Appropriate  Public  Education  of  All  Handi- 
capped Children:  Fourth  Annual  Report  to 
Congress  on  the  Implementation  of  Public  Law 
94-142:  The  Education  for  All  Handicapped 
Children  Act  (1982),  p.  12  (hereafter  cited  as  1982 
PL.  94-142  Implementation  Report). 
While  EAHCA  was  being  debated,  some  congres- 
sional leaders  made  reference  to  rough  estimates 
that  educating  a  handicapped  child  costs  an 
average  of  twice  as  much  as  a  nonhandicapped 
child.  See  121  Cong.  Rec.  25536  (1975)  (remarks  of 
Rep.  Perkins);  121  Cong.  Rec.  23703  (1975)  (re- 
marks of  Rep.  Brademas).  A  Rand  Corporation 
study  estimated  that  special  education  costs  2.17 
times  the  cost  of  regular  eduction.  J.S.  Kakalik 
and  others,  The  Cost  of  Special  Education:  Sum- 
mary of  Study  Findings,  performed  under  con- 
tract with  the  U.S.  Department  of  Education 
(Santa  Monica,  Calif.:  Rand  Corporation,  1981),  p. 
39.  The  accuracy  and  usefulness  of  such  overall 
estimates  are  somewhat  dubious,  since  special 
education  costs  vary  dramatically  from  State  to 
State,  from  rural  to  urban  settings,  from  handi- 
cap to  handicap,  from  school  district  to  school 
district,  and  depend  upon  the  level  of  supportive 


gested  that  the  mandates  imposed  upon 
State  and  local  education  agencies  by 
Federal  programs  such  as  the  EAHCA 
are  disproportionate  to  the  relatively  low 
levels  of  Federal  funding  provided.47 

Since  the  enactment  of  the  EAHCA, 
however,  the  paramount  necessity  of 
providing  a  free  appropriate  public  edu- 
cation for  each  handicapped  child  is 
rarely  questioned.48   Congress  and  other 

and  professional  services  made  available.  See 
U.S.,  Department  of  Education,  To  Assure  the 
Free  Appropriate  Public  Education  of  All  Handi- 
capped Children:  Fifth  Annual  Report  to 
Congress  on  the  Implementation  of  Public  Law 
94-142:  The  Education  for  All  Handicapped 
Children  Act  (1973),  p.  16  (hereafter  cited  as  1983 
PL.  94-142  Implementation  Report);  Leigh  S. 
Marriner,  "The  Cost  of  Educating  Handicapped 
Pupils  in  New  York  City,"  Journal  of  Education 
Finance,  vol.  3  (Summer  1977),  pp.  82-97;  Lloyd 
E.  Frohreich,  "Costing  Programs  for  Exceptional 
Children:  Dimensions  and  Indices,"  Exceptional 
Children,  vol.  39  (1973),  pp.  517-24;  Richard  A. 
Rossmiller  and  Lloyd  E.  Frohreich,  "Expendi- 
tures and  Funding  Patterns  in  Idaho's  Programs 
for  Exceptional  Children"  (Madison,  Wise: 
March  1979),  pp.  1-7. 

45  20  U.S.C.  §1401(20)  (Supp.  V  1981). 

46  In  1977  grants  awarded  under  EAHCA  totaled 
$200  million  out  of  an  estimated  total  of  over  $7 
billion  in  national  expenditures  for  excess  costs 
of  special  education.  1983  PL.  94-142  Implemen- 
tation Report,  pp.  16,  169.  As  of  the  fiscal  year 
ending  in  September  1983,  Federal  grants  under 
EAHCA  will  total  over  $930  million.  Ibid.,  p.  169. 

47  See  Robert  B.  Howsam,  "Public  Education:  A 
System  to  Meet  Its  Needs,"  Policy  Studies  Re- 
view, vol.  2,  no.  1  (January  1983),  p.  102;  Lau- 
rence E.  Lynn,  Jr.,  "The  Emerging  System  for 
Educating  Handicapped  Children,"  Policy  Stud- 
ies Review,  vol.  2,  no.  1  (January  1983),  p.  50; 
Richard  A.  Rossmiller,  "Funding  and  Entitle- 
ment Under  P.L.  94-142,"  Perspectives  on  the 
Implementation  of  the  "Education  for  All  Handi- 
capped Children  Act  of  1975, "  ed.  Richard  A. 
Johnson  and  Anthony  P.  Kowalski  (Washington, 
D.C.:  The  Council  of  the  Great  City  Schools, 
1977),  p.  30. 

48  Apart  from  EAHCA,  a  duty  to  provide  handi- 
capped children  a  free  appropriate  public  educa- 


76 


commentators  have  concluded  that  ex- 
pending funds  for  educating  handi- 
capped children  is  a  sound  economic 
investment.  In  enacting  the  act,49 
Congress  thoroughly  explored  the  costs 
of  special  education.  It  studied  such 
issues  as  the  degree  of  additional  ex- 
pense required  for  educating  a  handi- 
capped student,50  the  costs  of  procedural 
requirements,51  and  the  apportioning  of 
Federal  and  State  responsibility  for  un- 
derwriting such  costs.52  Congress  also 
considered  funding  formulas  for  Federal 
reimbursement,53  authorization  levels 
and  future  funding  expectations,54  and 
the  effect  of  economic  hard  times  and 
budgetary  constraints.55  In  addition, 
Congress  repeatedly  stressed  the  fiscal 


tion  has  been  held  to  exist  under  other  Federal 
statutes,  Federal  constitutional  provisions,  State 
constitutions,  and  State  statutes.  See,  e.g.,  New 
Mexico  Ass'n  for  Retarded  Citizens  v.  State  of 
N.M.,  678  F.2d  847,  853-55  (10th  Cir.  1982);  Mills 
v.  Board  of  Educ.  of  D.C.,  348  F.  Supp.  866  (D.D.C 
1972);  In  re  G.H.,  218  N.W.2d  441  (N.D.  1974) 
Lora  v.  Board  of  Educ.  of  City  of  N.Y.,  456  F 
Supp.   1211,   1216-24,   1230-64  (E.D.N.Y.   1978) 
Frederick  L.  v.  Thomas,  419  F.  Supp.  960  (E.D 
Pa.  1976). 

«  Pub.  L.  No.  94-42,  89  Stat.  773  (1975),  20 
U.S.C.  §1401  etseq. 

50  See  121  Cong.  Rec.  23706-07  (1975)  (remarks  of 
Rep.  Quie);  121  Cong.  Rec.  25534  (1975)  (remarks 
of  Rep.  Brademas);  121  Cong.  Rec.  25536  (1975) 
(remarks  of  Rep.  Perkins). 

51  121  Cong.  Rec.  19499  (1975)  (remarks  of  Sen. 
Dole). 

52  See  121  Cong.  Rec.  19494  (1975)  (remarks  of 
Sen.  Javits);  121  Cong.  Rec.  19498  (1975)  (re- 
marks of  Sen.  Dole);  121  Cong.  Rec.  19502-03 
(1975)  (remarks  of  Sen.  Cranston);  121  Cong.  Rec. 
23702  (1975)  (remarks  of  Rep.  Brademas);  121 
Cong.  Rec.  23705  (1973)  (remarks  of  Rep.  Jef- 
fords); 121  Cong.  Rec.  37410  (1975)  (remarks  of 
Sen.  Randolph). 

53  See  121  Cong.  Rec.  19494  (1975)  (remarks  of 
Sen.  Javits);  121  Cong.  Rec.  23703-04  (1975) 
(remarks  of  Rep.  Brademas);  121  Cong.  Rec. 
23706  (1975)  (remarks  of  Rep.  Perkins);  121  Cong. 
Rec.  23709  (1975)  (remarks  of  Rep.  Biaggi). 


benefits  accruing  from  such  educational 
programs.56  Numerous  members  of 
Congress  expressed  their  conviction  that 
funds  expended  to  educate  handicapped 
youngsters  would  be  outweighed  by  the 
financial  returns  such  education  would 
produce.57  The  Senate  report  accompa- 
nying the  act  decried  the  billions  of 
dollars  spent  to  provide  some  handi- 
capped people  maintenance  in  a  depen- 
dent and  minimally  adequate  lifestyle, 
and  concluded: 


With  proper  education  services, 
many  would  be  able  to  become  pro- 
ductive citizens,  contributing  to  soci- 
ety instead  of  being  forced  to  remain 
burdens.  Others,  through  such  ser- 

54  See  121  Cong.  Rec.  23707  (1975)  (remarks  of 
Rep.  Quie);  121  Cong.  Rec.  25534  (1975)  (remarks 
of  Rep.  Brademas);  121  Cong.  Rec.  37025-26 
(1975)  (remarks  of  Rep.  Perkins);  121  Cong.  Rec. 
37030  (1975)  (remarks  of  Rep.  Daniels);  121  Cong. 
Rec.  37413  (1975)  (remarks  of  Sen.  Williams). 

55  See  121  Cong.  Rec.  37413  (1975)  (remarks  of 
Sen.  Williams);  121  Cong.  Rec.  25537  (1975) 
(remarks  of  Rep.  Bauman);  121  Cong.  Rec.  37029 
(1975)  (remarks  of  Rep.  Michel). 

56  See  121  Cong.  Rec.  37420  (1975)  (remarks  of 
Sen.  Hathaway);  121  Cong.  Rec.  37411  (1975) 
(remarks  of  Sen.  Humphrey);  121  Cong.  Rec. 
25538  (1975)  (remarks  of  Rep.  Harris);  121  Cong. 
Rec.  25541  (1975)  (remarks  of  Rep.  Harkin);  121 
Cong.  Rec.  37418  (1975)  (remarks  of  Sen.  Biden); 
121  Cong.  Rec.  23709  (1975)  (remarks  of  Rep. 
Minish);  121  Cong.  Rec.  23703  (1975)  (remarks  of 
Rep.  Brademas). 

57  See  121  Cong.  Rec.  19492  (1975)  (remarks  of 
Sen.  Williams);  121  Cong.  Rec.  19505  (1975) 
(remarks  of  Sen.  Beall);  121  Cong.  Rec.  25538 
(1975)  (remarks  of  Rep.  Harris);  121  Cong.  Rec. 
25541  (1975)  (remarks  of  Rep.  Harkin);  121  Cong. 
Rec.  37030  (1975)  (remarks  of  Rep.  Daniels);  121 
Cong.  Rec.  37411  (1975)  (remarks  of  Sen.  Hum- 
phrey); 121  Cong.  Rec.  37417  (1975)  (remarks  of 
Sen.  Javits);  121  Cong.  Rec.  37418  (1975)  (re- 
marks of  Sen.  Biden);  121  Cong.  Rec.  37420  (1975) 
(remarks  of  Sen.  Hathaway). 


77 


vices,  would  increase  their  indepen- 
dence, thus  reducing  their  depen- 
dence on  society.  .  .  . 


Providing  educational  services  will 
ensure  against  persons  needlessly 
being  forced  into  institutional  set- 
tings.58 

In  1976  the  Department  of  Health,  Edu- 
cation, and  Welfare  estimated  that  ex- 
pansion of  special  education  services 
pursuant  to  the  requirements  of  section 
504  of  the  Rehabilitation  Act  would 
result  in  an  annual  increase  of  $1.5 
billion  in  adulthood  earnings  of  the  addi- 
tional handicapped  children  served.59 

Moreover,  it  estimated  placements  in 
settings  closer  to  the  mainstream  and 
reduced  mislabeling  of  nonhandicapped 
children  would  save  some  $800  million 
per  year  in  special  education  expendi- 
tures.60 A  1982  report  to  Congress  by  the 
U.S.  Department  of  Education  indicates 
that  under  the  Education  for  All  Handi- 


58  S.  Rep.  No.  168,  94th  Cong.,  1st  Sess.  9, 
reprinted  in  1975  U.S.  Code  Cong.  &  Admin.  News 
1433. 

59  Discrimination  Against  Handicapped  Persons: 
The  Costs,  Benefits  and  Inflationary  Impacts  of 
Implementing  Section  504  of  the  Rehabilitation 
Act  of  1973  Covering  Recipients  of  HEW  Finan- 
cial Assistance,  41  Fed.  Reg.  20365  (1976). 

60  Id.  at  20364. 

61  P.L.  94-1 42  Implementation  Report,  p.  6,  fig.  2. 

62  Ibid. 

63  Ibid.,  p.  xvii. 

64  E.g.,  Ronald  Conley,  The  Economics  of  Mental 
Retardation  (Baltimore:  Johns  Hopkins  Univ. 
Press,  1973),  pp.  296-300;  L.J.  Schweinhart  and 
D.P.  Weikart,  "Young  Children  Grow  Up:  The 
Effects  of  the  Perry  Preschool  Program  on 
Youths  Through  Age  15"  (Ypsilanti,  Minn.:  High 
Scope  Educational  Research  Foundation,  1980). 
See  also  Discrimination  Against  Handicapped 
Persons  Cost  Study,  41  Fed.  Reg.  20312,  20338-60 
(1976);  Note,  "Mending  the  Rehabilitation  Act  of 


capped  Children  Act,  more  than  67  per- 
cent of  handicapped  children  were  at- 
tending regular  classes61  and  more  than 
93  percent  were  being  educated  in  regu- 
lar education  buildings.62  The  report 
cited  a  study  indicating  that  under  the 
EAHCA  there  had  been  a  reduction  in 
costly  private  placements.63  The  few 
studies  on  the  issue  indicate  that  special 
education  yields  substantial  economic 
benefits  by  reducing  the  need  for  institu- 
tionalization, increasing  future  earnings, 
and  decreasing  need  for  public  assis- 
tance.64 


Institutionalization 

Virtually  all  the  relevant  literature 
documents  that  segregating  handicapped 
people  in  large,  impersonal  institutions 
is  the  most  expensive  means  of  care.65 
Evidence  suggests  that  alternative  living 
arrangements  allowing  institutionalized 
residents  to  return  to  the  community  can 
save  money.66  As  a  Federal  court  has 
noted,  "Comparable  facilities  in  the  com- 

1973,"  p.  728;  Note,  "The  Education  for  All 
Handicapped  Children  Act:  Opening  the  School- 
house  Door,"  N.Y.U.  Rev.  L.  &  Soc.  Change,  vol.  6 
(1976),  p.  63. 

65  Comptroller  General  of  the  United  States, 
Returning  the  Mentally  Disabled  to  the  Commu- 
nity: Government  Needs  to  Do  More  (1977),  pp.  5- 
7;  Conley,  The  Economics  of  Mental  Retardation, 
pp.  297-300;  Jane  G.  Murphy  and  William  E. 
Datel,  "A  Cost-Benefit  Analysis  of  Community 
Versus  Institutional  Living,"  Hospital  and  Com- 
munity Psychiatry,  vol.  27,  no.  3  (March  1976),  pp. 
165-70. 

66  A  demonstration  project  to  develop  alterna- 
tives to  institutional  litigation  estimated  that 
$20,000  could  be  saved  for  each  deinstitutional- 
ized person  over  a  10-year  period.  See  Jane  G. 
Murphy  and  William  E.  Datel,  "A  Cost-Benefit 
Analysis  of  Community  Versus  Institutional  Liv- 
ing," Hospital  and  Community  Psychiatry,  vol. 
27,  no.  3  (March  1976),  pp.  165-69. 


78 


munity  are  generally  less  expensive  than 
large  isolated  state  institutions."67 

Transportation 

The  costs  of  eliminating  barriers  pre- 
venting use  of  public  transportation  by 
handicapped  people  are  not  small,  but 
the  benefits  to  society  may  be  substan- 
tial.68 Estimates  by  the  Congressional 
Budget  Office  (CBO)  of  costs  of  removing 
transportational  barriers  in  federally 
funded  transit  systems  range  from  $4.4 
billion  to  $6.8  billion.69  A  study  by  the 
American  Public  Transit  Association  es- 
timated the  total  cost  per  rider  of  accessi- 
ble fixed  route  bus  service  to  be  $717. 70 
This  estimate  was  based  on  an  average 
estimated  cost  of  five  transportation  sys- 

67  Halderman  v.  Pennhurst  State  School  and 
Hosp.,  446  F.  Supp.  1295,  1312  (E.D.  Pa.  1978), 
reversed  on  other  grounds,  451  U.S.  1  (1981).  See 
also  Note,  "Mending  the  Rehabilitation  Act  of 
1973,"  p.  728;  118  Cong.  Rec.  3321  (1972)  (state- 
ment of  Sen.  Williams). 

68  American  Bar  Association,  Eliminating  Envi- 
ronmental Barriers  (1979),  p.  2. 

69  These  estimates  vary  according  to  which  of 
three  basic  options  is  being  considered  for  serving 
the  transportation  needs  of  handicapped  people. 
The  first  option,  the  transit  plan,  would  cost  $6.8 
billion  to  be  spent  over  the  next  30  years.  Of  this 
amount  $2.2  billion  would  be  spent  on  modifying, 
operating,  and  maintaining  rail  services.  This 
$2.2  billion  would  also  include  the  cost  of  provid- 
ing door-to-door  service  in  lieu  of  modifying 
stations  and  rail  cars.  The  remaining  $4.6  billion 
would  be  spent  on  modifying,  purchasing,  and 
maintaining  transit  buses.  The  second  option,  the 
taxi  plan,  would  cost  an  estimated  $4.4  billion 
over  the  next  30  years.  This  plan  would  entail  a 
number  of  small  modifications  in  existing  rail 
and  bus  systems.  The  emphasis,  however,  would 
be  on  providing  dial-a-ride  vans  for  handicapped 
persons.  The  third  option,  the  auto  plan,  would 
cost  an  estimated  $6.4  billion  over  the  next  30 
years.  This  plan  would  provide  dial-a-ride  ser- 
vice, low-fare  taxi  services  for  severely  handi- 
capped persons  unable  to  use  transit,  and  finan- 
cial assistance  to  purchase  specially  equipped 


terns,  ranging  from  $59  per  handicapped 
bus  rider  in  San  Diego  to  $1,440  per 
handicapped  passenger  in  Milwaukee.71 
Some  have  suggested  that  high  costs 
make  accessible  transportation  infeasi- 
ble.72  One  authority  has  contended  that 
rules  requiring  accessible  transportation 
for  handicapped  people  "are  so  costly, 
and  of  benefit  to  such  an  infinitesimal 
minority  of  handicapped  people,  that 
they  call  into  question  the  wisdom  of  the 
law  and  the  common  sense  of  those  who 
administer  it."73 

The  accuracy  of  high  cost  estimates  of 
accessible  transportation  has  been  the 
subject  of  much  controversy.74  Figures 
have  been  criticized  as  underestimating 
potential  handicapped  ridership,  overes- 

vans  for  permanently  handicapped  people  who 
use  wheelchairs.  See  CBO,  Urban  Transportation 
for  Handicapped  Persons:  Alternative  Federal 
Approaches,  pp.  xi-xiv.  The  second  and  third 
plans  would  involve  ongoing  funding  for  the 
alternative  transportation  services  in  perpetuity, 
while  the  first  would  impose  primarily  one-time 
modification  costs  spread  over  30  years. 

70  American  Public  Transit  Association,  "Brief 
Review  of  Mobility  Options  in  Bus  Transporta- 
tion," June  1980,  p.  4. 

71  Ibid. 

72  See  Editorial,  "Must  Every  Bus  Kneel  to  the 
Disabled?"  New  York  Times,  Nov.  18,  1979,  p.  18- 
E;  Timothy  B.  Clark,  "Regulation  Gone  Amok: 
How  Many  Billions  for  Wheelchair  Transit?" 
AEI  Journal  on  Government  and  Soci- 
ety/Regulation, March-April  1980,  p.  47. 

73  Clark,  "Regulation  Gone  Amok,"  p.  42. 

74  See  Note,  "Accommodating  the  Handicapped: 
The  Meaning  of  Discrimination  Under  Section 
504  of  the  Rehabilitation  Act,"  pp.  901-02,  n.  107; 
126  Cong.  Rec.  S8151  (daily  ed.  June  25,  1980) 
(remarks  of  Sen.  Exon);  126  Cong.  Rec.  HI  1609 
(daily  ed.  Dec.  2,  1980)  (remarks  of  Rep.  Howard); 
CBO,  Urban  Transportation  for  Handicapped 
Persons:  Alternative  Federal  Approaches,  p.  67; 
126  Cong.  Rec.  S8151  (daily  ed.  June  25,  1980); 
126  Cong.  Rec.  S7673  (daily  ed.  June  25,  1980) 
(remarks  of  Sen.  Cranston). 


79 


timating  capital  and  maintenance  ex- 
penses, miscategorizing  capital  expendi- 
ture costs  not  included  in  computing  per 
rider  costs  for  nonhandicapped  persons, 
and  inappropriately  comparing  one-time 
expenditures  with  perpetually  ongoing 
expenses  of  certain  transit  options.75 
Congressional  Budget  Office  estimates  of 
transportation  accessibility  costs,  for  ex- 
ample, have  been  strongly  challenged  by 
the  Department  of  Transportation 
(DOT).76  DOT  argues  that  CBO  figures 
underestimate  numbers  of  potential 
handicapped  passengers  and  overesti- 
mate maintenance  costs,  loss  of  seating 
capacity,  and  other  expenses.77  DOT 
concludes  that,  based  on  more  realistic 
figures,  the  accessible  fixed  route  service 
is  actually  less  expensive  than  other 
alternatives.78 

Whatever  the  actual  costs  of  accessible 
transportation  may  be,  there  are  clearly 
some  significant  benefits  associated  with 
it.  Beyond  interfering  with  handicapped 
people's  ability  to  engage  in  social,  recre- 
ational, housing,  and  educational  oppor- 
tunities   available   to   nonhandicapped 

75  See,  e.g.,  Dennis  Cannon  and  Frances  Rain- 
bow, "Full  Mobility:  Counting  the  Costs  of  the 
Alternatives"  (Washington,  D.C.:  American  Co- 
alition of  Citizens  with  Disabilities,  1980);  126 
Cong.  Rec.  S7673-75  (daily  ed.  June  20,  1980) 
(remarks  of  Sen.  Cranston);  126  Cong.  Rec. 
S8155-56  (daily  ed.  June  25,  1980)  (remarks  of 
Sen.  Cranston);  126  Cong.  Rec.  HI  1623  (daily  ed. 
Dec.  2,  1980)  (remarks  of  Rep.  Simon);  126  Cong. 
Rec.  H11624-26  (daily  ed.  Dec.  2,  1980)  (remarks 
of  Rep.  Miller). 

76  U.S.,  Department  of  Transportation,  "Com- 
ments on  Congressional  Budget  Office  Report  on 
Urban  Transportation  for  Handicapped  Per- 
sons," 126  Cong.  Rec.  S7673-75  (daily  ed.  June  20, 
1980). 

77  Ibid.,  p.  S7674. 

78  Ibid. 

79  See  discussion  of  barriers  in  chap.  2.  A 
Federal  court  has  noted:   "Transportation  fur- 


people,  transportation  barriers  have  a 
serious  negative  effect  on  employment 
opportunities.79  One  commentator  has 
estimated  that  13  percent  of  unemploy- 
ment among  handicapped  people  is  due 
to  travel  barriers  and  that  200,000  handi- 
capped people  would  enter  the  work 
force  if  the  barriers  were  eliminated, 
adding  as  much  as  $1  billion  in  annual 
earnings  to  the  economy.80  The  Depart- 
ment of  Transportation  has  estimated 
that  approximately  $800  million  in  net 
benefits  to  society  would  result  from 
eliminating  transportation  barriers.81 
DOT  has  observed  that  savings  in  reduc- 
tions of  supplemental  security  income 
costs  by  increased  employment  opportu- 
nities for  handicapped  people  through 
accessible  transportation  would  alone 
account  for  as  much  as  $276  million 
annual  savings  for  the  Federal  trea- 
sury.82 Recent  Federal  court  decisions 
indicate  that  although  "massive"  modifi- 
cations may  not  be  required,  federally 
funded  public  transportation  systems  are 

nishes  the  vital  link  which  enables  the  handi- 
capped to  obtain  access  to  jobs,  education,  medi- 
cal care,  recreation  and  the  other  activities  of 
modern  living."  Rhode  Island  Handicapped  Ac- 
tion Comm.  v.  Rhode  Island  Pub.  Transit  Auth., 
549  F.  Supp.  592,  595  (D.R.I.  1982). 

80  N.  Reed,  "Equal  Access  to  Mass  Transporta- 
tion for  the  Handicapped,"  Transp.  L.J.,  vol.  9 
(1977),  pp.  170-71,  n.  24.  Cf.  CBO,  Urban  Trans- 
portation for  Handicapped  Persons:  Alternative 
Federal  Approaches,  p.  21. 

81  N.  Reed,  Equal  Access  to  Mass  Transportation 
for  the  Handicapped,  p.  171. 

82  U.S.,  Department  of  Transportation,  (draft) 
"Environmental  Impact  Statement  Pursuant  to 
Section  102(2)(c),  P.L.  91-190:  The  Department  of 
Transportation's  Regulation  Implementing  Sec- 
tion 504  of  the  Rehabilitation  Act  of  1973,"  June 
1980,  p.  viii-12. 


80 


obliged  to  make  efforts  to  accommodate 
the  needs  of  handicapped  passengers.83 

Architectural  Barriers 

Making  buildings  accessible  also  ap- 
pears to  be  economically  beneficial.  For 
new  buildings,  the  cost  of  barrier-free 
construction  is  negligible,  accounting  for 
only  an  estimated  one-tenth  to  one-half 
of  1  percent  of  construction  costs.84  For 
modifications  to  existing  buildings,  the 
costs  are  higher.  Such  costs  vary  greatly, 
but  the  Architectural  and  Transporta- 
tion Barriers  Compliance  Board  has  esti- 
mated that  full  accessibility  costs  an 
average   of  3    percent   of  a   building's 

83  See  Dopico  v.  Goldschmidt,  687  F.2d  644,  650 
(2d  Cir.  1982);  Rhode  Island  Handicapped  Action 
Comm.  v.  Rhode  Island  Pub.  Transit  Auth.,  549  F. 
Supp.  592,  608  (D.R.I.  1982).  Cf.  American  Pub. 
Transit  Ass'n  v.  Lewis,  655  F.2d  1272  (D.C.  Cir. 
1981).  These  decisions  are  reviewed  in  chap.  6. 

84  Discrimination  Against  Handicapped  Persons: 
The  Costs,  Benefits  and  Inflationary  Impacts  of 
Implementing  Section  504  of  the  Rehabilitation 
Act  of  1973,  41  Fed.  Reg.  20333;  Comptroller 
General  of  the  United  States,  Further  Action 
Needed  to  Make  All  Public  Buildings  Accessible 
to  the  Physically  Handicapped  (1975),  p.  89; 
"ATBCB  Minimum  Guidelines  and  Require- 
ments— Cost  Information,"  drafted  for  Office  of 
Management  and  Budget  by  Architectural  and 
Transportation  Barriers  Compliance  Board,  Mar. 
20, 1981,  p.  5  (hereafter  cited  as  ATBCB  Report). 

85  ATBCB  Report,  p.  5.  Projection  of  costs  of 
accessibility  are  frequently  significantly  overesti- 
mated. See  Jack  R.  Ellner  and  Henry  E.  Bender, 
Hiring  the  Handicapped  (New  York:  Amacom, 
1980),  pp.  48-49;  Rolf  M.  Wulfsberg  and  Richard 
J.  Petersen,  The  Impact  of  Section  504  of  the 
Rehabilitation  Act  of  1973  on  American  Colleges 
and  Universities,  Technical  Report  of  the  Nation- 
al Center  for  Education  Statistics  (Washington, 
D.C:  Government  Printing  Office,  1979),  p.  57. 

86  U.S.,  Department  of  Housing  and  Urban 
Development,  Office  of  Policy  Development  and 
Research,/!  Cost-Benefit  Analysis  of  Accessibility, 
by  Deborah  J.  Chollet  (Washington,  D.C:  Gov- 
ernment Printing  Office,  1979),  p.  3.  One  source 
estimates  that  1.7  to  11.6  percent  of  the  U.S. 


value.85  One  study  of  the  costs  of  remov- 
ing architectural  barriers  from  existing 
buildings  found  the  resulting  economic 
benefits  ranged  from  seven  times  to 
several  thousand  times  the  size  of  the 
costs.86 

Based  on  such  considerations  regard- 
ing the  various  cost  issues  affecting 
handicapped  people,  a  number  of  author- 
ities87 contend  that  although  the  costs  of 
integrating  handicapped  people  into  the 
mainstream  of  society  may  be  substan- 
tial in  some  contexts,  they  are  more  than 
offset  by  the  benefits  that  accrue  to 
society.88  This  conclusion  is  reached 
even  when  nonpecuniary  rewards  such 

population  would  benefit  from  the  elimination  of 
architectural  barriers.  U.S.,  Department  of 
Housing  and  Urban  Development,  Office  of  Poli- 
cy Development  and  Research,  Access  to  the  Built 
Environment,  A  Review  of  Literature  (1979). 
Another  authority  estimates  that  environmental 
barriers  cost  society  more  than  $100  billion  per 
year  and  that  these  costs  are  escalating  rapidly. 
Bowe,  Rehabilitating  America,  p.  93. 

87  See,  e.g.,  Hearne  statement,  Consultation,  pp. 
198-201;  "Mending  The  Rehabilitation  Act,"  pp. 
727-28;  Bowe,  Rehabilitating  America,  p.  93; 
American  Bar  Association,  Eliminating  Environ- 
mental Barriers,  p.  2;  H.R.  Rep.  1149,  95th  Cong., 
2d.  Sess.,  reprinted  in  1978  U.S.  Code  Cong.  &  Ad. 
News  7312,  7320;  118  Cong.  Rec.  3320-21  (1972) 
(statement  of  Sen.  Williams);  Costs,  Benefits  and 
Inflationary  Impact  of  Section  504,  41  Fed.  Reg. 
20364-65  (1976).  See  also  "Remarks  at  the  Annu- 
al Meeting  of  the  President's  Committee  on 
Employment  of  the  Handicapped,"  May  1,  1980. 
Public  Papers  of  the  Presidents:  Jimmy  Carter, 
1980,  pp.  808,  812. 

88  Among  the  financial  returns  to  which  such 
authorities  point  are  large  savings  in  reduced 
expenditures  of  public  benefits  programs,  such  as 
social  security  disability  insurance,  supplemental 
security  income  (SSI),  and  State  welfare,  home 
relief,  and  aid  to  families  with  dependent  chil- 
dren. Hearne  statement,  Consultation,  p.  200; 
Bowe,  Rehabilitating  America,  p.  4.  This  does  not 
imply  that  handicapped  recipients  of  such  public 
benefits  are  not  qualified  or  deserving  of  such 


81 


as  psychological  benefits,  fairness,  and 
humanitarian  concerns  are  not  consid- 
ered. As  one  author  succinctly  conclud- 
ed, "Keeping  disabled  people  in  depen- 
dency is  costing  us  many  times  more 
than  would  helping  them  to  indepen- 
dence."89 


The  Meaning  of  Full 
Participation 

Attaining  the  full  participation  of 
handicapped  persons  requires  efforts  by 
the  public  and  private  sectors  in  the 
broad  areas  of  conduct,  attitudes,  and 
services.  Government's  role  in  ending 
discriminatory  conduct  consists  primari- 
ly of  enacting  and  enforcing  laws  against 
discrimination  and  providing  tax  bene- 
fits and  other  incentives  for  nondiscrimi- 
nation. The  role  of  individuals  and  orga- 
nizations lies  in  voluntary  efforts  to 
avoid  discriminating  against  those  with 
handicaps.  Countering  negative  atti- 
tudes toward  handicapped  people  calls 
for  education  through  public  and  private 
dissemination  of  positive  information  as 
well  as  increased  interaction  between 
handicapped  and  nonhandicapped  peo- 
ple. 

Services  are  also  crucial  to  furthering 
the    full    participation   of  handicapped 

benefits,  but  rather  that  increased  expenditures 
to  programs  encouraging  full  economic  and  social 
participation  by  handicapped  people  would  pro- 
mote their  economic  self-sufficiency  and  reduce 
their  need  to  rely  on  public  benefits.  Studies 
suggest  that  because  of  the  way  public  benefits 
programs  have  been  structured  and  adminis- 
tered, some  have  involved  financial  disincentives 
to  full,  competitive  employment  of  handicapped 
persons.  See,  e.g.,  Bonnie  Sims  and  Scott  Manley, 
"Keeping  the  Disabled  Out  of  the  Employment 
Market:  Financial  Disincentives,"  Disabled  Peo- 
ple as  Second-Class  Citizens,  ed.  Myron  Eisen- 
berg,  Cynthia  Griggins,  and  Richard  Duval  (New 
York:  Springer  Publishing  Co.,  1982),  p.  123.  Both 


people.  Eliminating  discriminatory  acts 
and  hostile  attitudes  is  only  half  the 
battle  for  those  who  cannot  get  out  of  bed 
and  dress  without  attendant  services;  for 
those  who  need  but  do  not  have  prosthet- 
ic devices,  wheelchairs,  or  other  equip- 
ment; for  those  without  access  to  essen- 
tial medical,  psychological,  or  psychiatric 
services;  and  for  those  without  needed 
transportation.  To  realize  the  goal  of  full 
participation,  society  needs  to  find  ways 
to  make  necessary  services  available  to 
handicapped  people. 

In  combating  discriminatory  conduct, 
improving  attitudes,  and  increasing  the 
availability  of  essential  services,  the  goal 
of  full  participation  serves  as  the  touch- 
stone for  choosing  among  alternative 
courses  of  action.  The  decision  whether 
to  place  a  special  education  class  in  a 
regular  school  building  or  in  a  separate 
school,  for  example,  should  take  into 
account  the  degree  to  which  each  alter- 
native fosters  full  participation.  Choices 
among  various  public  transportation  op- 
tions should  also  reflect  the  full  partici- 
pation goal.  Public  education  and  infor- 
mation programs  should  illustrate  the 
benefits  and  importance  of  full  participa- 
tion by  handicapped  persons.  Attendant 
services;   prosthetic  devices  and  equip- 

Congress  and  the  Social  Security  Administration 
(SSA)  have  recognized  the  problem  of  work 
disincentives  in  the  SSI  program.  As  a  result,  the 
SSA  has  initiated  three  demonstration  projects  to 
evaluate  alternative  solutions.  See  Social  Securi- 
ty Bulletin,  vol.  44  (4)  (April  1981),  pp.  14, 18. 
89  Bowe,  Rehabilitating  America,  p.  xv.  See  also 
126  Cong.  Rec.  HI  1628  (daily  ed.,  Dec.  2,  1980) 
(remarks  of  Rep.  Cavanaugh).  Agreement  that 
the  benefits  to  society  of  full  participation  by 
handicapped  people  outweigh  the  costs  involved 
does  not,  of  course,  answer  serious  questions 
concerning  how  such  costs  should  be  allocated 
between  the  private  and  public  sectors. 


82 


ment;  medical,  psychological,  and  psychi- 
atric services;  means  of  transportation; 
and  other  essential  services  should  be 
provided  in  ways  that  give  handicapped 
individuals  maximum  opportunity  to 
participate  fully  in  society. 

The  general  phrase  "full  participa- 
tion" is  even  more  useful  as  a  guide  to 
corrective  action  when  we  examine  its 
specific  components.  The  better  we  un- 
derstand what  the  goal  entails,  the  great- 
er our  ability  to  choose  those  actions  that 
best  advance  it.  The  following  material 
describes  some  important,  closely  in- 
terrelated components  of  full  participa- 
tion identified  by  the  courts  and  in  the 
professional  literature. 

Normalization 

Normalization90  has  been  described  as 
"making  available  to  the  [handicapped 
person]  patterns  and  conditions  of  every- 
day life  which  are  as  close  as  possible  to 
the  norms  and  patterns  of  the  main- 
stream of  society,"91  and  as  "[U]tiliz[ing] 
of  means  which  are  as  culturally  norma- 

90  See  Halderman  v.  Pennhurst  State  School  and 
Hosp.,  446  F.  Supp.  1295,  1311  (E.D.  Pa.  1978), 
reversed  and  remanded  on  other  grounds,  451 
U.S.  1  (1981).  For  a  judicial  discussion  of  the 
related  term  "mainstreaming,"  see  Lora  v.  Board, 
of  Educ.  of  City  of  N.Y.,  456  F.  Supp.  1211,  1264- 
71  (E.D.N.Y.  1978). 

91  See  Bengt  Nirje,  "The  Normalization  Princi- 
ple and  Its  Human  Management  Implications," 
Changing  Patterns  in  Residential  Services  for  the 
Mentally  Retarded,  p.  181. 

92  Wolf  Wolfensberger,  The  Principle  of  Normal- 
ization in  Human  Services  (Toronto:  National 
Institute  On  Mental  Retardation,  1972),  p.  28. 

93  The  corollaries  and  implications  of  the  nor- 
malization principle  have  been  the  subject  of 
considerable  discussion  in  professional  literature. 
Some  identified  elements  of  the  normalization 
concept  include:  (a)  normal  rhythm  of  daily  life 
for  handicapped  persons;  (b)  normal  variation  of 
locations,  e.g.,  living  and  working  in  different 


tive  as  possible,  in  order  to  establish 
and/or  maintain  personal  behaviors  and 
characteristics  which  are  as  culturally 
normative  as  possible."92  Put  simply, 
normalization  means  that  handicapped 
people  should  be  treated  as  much  as 
possible  like  other  people  of  their  same 
age,  sex,  and  cultural  background.  It 
does  not  imply  that  handicapped  people 
should  be  forced  against  their  personal 
wishes  to  conform  to  what  other  people 
do,  but  rather  that  they  should  have  the 
opportunity  to  engage  in  normal  activi- 
ties and  lifestyle.93 

Independent  Living 

Another  aspect  of  handicapped  peo- 
ple's full  participation  is  independent 
living.  A  central  element  of  this  concept 
is  self-determination  for  handicapped 
persons.  Independent  living  programs 
insist  on  "client  self-choice  rather  than 
incorporation  of  the  client  into  a  set  of 
goals  established  by  program  managers, 

places,  and  a  variety  of  places  for  leisure  activi- 
ties; (c)  normal  rhythm  of  the  year,  with  holidays 
and  family  days  of  personal  significance;  (d)  an 
opportunity  to  undergo  the  normal  developmen- 
tal experiences  of  the  life  cycle:  childhood  in  a 
real  and  stimulating  environment,  normal  ado- 
lescent experiences  of  school  and  peers,  a  normal 
transition  from  dependence  to  independence  and 
adulthood,  and  a  period  of  old  age  close  to 
familiar  settings  and  acquaintances;  (e)  taking 
into  account  and  respecting  the  choices,  wishes, 
and  desires  of  the  handicapped  person;  (f)  associ- 
ating with  members  of  the  opposite  sex;  (g)  the 
application  of  normal  economic  standards.  See 
Nirje,  "The  Normalization  Principle  and  its 
Human  Management  Implications,"  pp.  181-85; 
see  generally  Wolfensberger,  The  Principle  of 
Normalization  in  Human  Services,  p.  28;  Eveline 
D.  Schulman,  Focus  on  the  Retarded  Adult- 
Programs  and  Services  (St.  Louis:  C.  V.  Mosby  Co., 
1980),  pp.  64-73. 


service  professionals,  or  funding  me- 
chanisms. .  .  ."94  This  right  to  self-de- 
termination is  the  hallmark  of  the  move- 
ment for  independent  living.  Some  advo- 
cates for  independent  living  have  elabo- 
rated on  its  meaning: 


Independent  living  is.  .  .to  live 
where  and  how  one  chooses  and  can 
afford.  It  is  living  within  the  commu- 
nity in  the  neighborhood  one 
chooses.  It  is  living  alone  or  with  a 
roommate  of  one's  choice.  It  is  decid- 
ing one's  own  pattern  of  life — sched- 
ule, food,  entertainment,  vices,  vir- 
tues, leisure,  and  friends.  It  is  free- 
dom to  take  risks  and  freedom  to 
make  mistakes.95 


The  movement  [for  independent  liv- 
ing] is  based  on  the  disabled  popula- 
tion's desire  to  lead  the  fullest  lives 
possible,  outside  of  institutions,  inte- 
grated into  the  community,  exercis- 
ing full  freedom  of  choice.96 

Congress  recognized  the  concept  of  inde- 
pendent living  in  1978  when  it  enacted 


94  H.  Cole,  "What's  New  About  Independent 
Living?"  Archives  of  Physical  Medicine  and  Re- 
habilitation, vol.  60  (1979),  pp.  458-62,  quoted  in 
Center  for  Independent  Living,  "Independent 
Living:  The  Right  to  Choose,"  Disabled  People  as 
Second-Class  Citizens,  p.  248. 

95  G.  Laurie,  "Independent  Living  Programs," 
Rehabilitation  Gazette/79,  vol.  22  (1979),  pp.  9- 
11,  quoted  in  Center  for  Independent  Living, 
"Independent  Living:  The  Right  to  Choose,"  p. 
247. 

96  Center  for  Independent  Living,  "Independent 
Living:  The  Right  to  Choose,"  p.  248.  See  also 
Center  for  Independent  Living,  "An  Introduction 
to  the  Center  for  Independent  Living,"  unpubl- 
ished manuscript  (1979),  quoted  in  Center  for 
Independent  Living,  "Independent  Living:  The 
Right  to  Choose,"  p.  247. 


"Comprehensive  Services  for  Indepen- 
dent Living,"  a  program  providing 
grants  to  the  States  for  the  establish- 
ment and  operation  of  independent  liv- 
ing centers.97 

Developmental  Model 

With  full  participation,  handicapped 
people  would  not  be  summarily  pigeon- 
holed into  particular  roles,  activities, 
and  expectations,  based  upon  one-time 
assessments  of  their  needs  and  abilities. 
Since  handicapped  people  have  potential 
for  growth,  progress,  and  development,  it 
is  reasonable  to  expect  their  wishes, 
needs,  and  goals  will  not  remain  static. 
Consequently,  decisionmakers  need  to 
use  developmental  models  when  plan- 
ning and  implementing  programs  for 
handicapped  people.  The  developmental 
approach  considers  each  individual  as 
being  in  a  continuous  process  of  growth, 
learning,  and  development.  Programs  or 
activities  for  an  individual  should  be 
determined  by  observation  of  the  individ- 
ual's behavior  and  current  state  of  devel- 
opment and  should  be  periodically  reev- 
aluated to  monitor  and  enhance  the 
individual's    rate    of  progress.98      This 

97  Rehabilitation,  Comprehensive  Services,  and 
Developmental  Disabilities  Amendments  of  1978, 
Pub.  L.  No.  95-602,  Title  VII,  §§701  and  711,  92 
Stat.  2995,  2998  (1978),  29  U.S.C.A.  §§796  and 
796e  (West  Supp.  1978-82).  For  a  discussion  of  the 
emergence  of  the  independent  living  concept  as  a 
component  of  Federal  policy,  see  Lloyd  Burton, 
"Federal  Government  Assistance  for  Disabled 
Persons:  Law  and  Policy  in  Uncertain  Transi- 
tion," Law  Reform  in  Disability  Rights,  vol.  2 
(1981),  pp.  B-lltoB-14. 

98  For  more  extensive  discussion  of  the  develop- 
mental approach,  see  Bruce  G.  Mason,  Frank  J. 
Menolascino,  and  Lorin  Galvin,  "The  Right  to 
Treatment  for  Mentally  Retarded  Citizens:  An 
Evolving  Legal  and  Scientific  Interface,"  Creigh- 


84 


developmental  principle  provides  the  ra- 
tionale for  requiring  annual  reviews  of 
rehabilitation    plans,"      habilitation 
plans,100     and  educational  programs101 
under  Federal  legislation. 

Dignity  of  Risk 

A  corollary  of  such  concepts  as  nor- 
malization and  independent  living  is  the 
idea  that  handicapped  persons  are  enti- 
tled to  take  normal  risks. 


The  dignity  of  risk  is  what  the 
independent  living  movement  is  all 
about.  Without  the  possibility  of 
failure,  the  disabled  person  is  said  to 
lack  true  independence  and  the 
mark  of  one's  humanity — the  right 
to  choose  for  good  or  evil.102 

This  principle  counters  overprotection 
of  handicapped  people.  In  warning  pro- 
fessionals against  an  overly  protective 
attitude  toward  handicapped  clients,  one 
authority  has  observed  that  "such  over- 
protection  endangers  the  client's  human 
dignity,  and  tends  to  keep  him  from 
experiencing  the  risk-taking  of  ordinary 
life  which  is  necessary  for  normal  hu- 
man growth  and  development."103  For 
example,  safety  concerns  should  not  pre- 
vent teaching  mentally  retarded  chil- 
dren or  blind  children  to  navigate  city 
streets.  Similarly,  handicapped  persons, 

ton  L.  Rev.,  vol.  10  (1976),  pp.  137-38,  especially 
nn.  33  and  34. 

99  29  U.S.C.  §722(b)  (1976). 

100  42  U.S.C.  §601 1(c)  (1976). 

101  20  U.S.C.  §1413(a)(ll)  (1976). 

102  Gerben  Dejong,  "Independent  Living:  From 
Social  Movement  to  Analytic  Paradigm,"  Ar- 
chives of  Physical  Medicine  and  Rehabilitation, 
vol.  60  (10)  (1979),  pp.  435-46,  quoted  in  Center 


like  their  nonhandicapped  peers,  should 
be  expected  as  they  reach  adulthood  to 
leave  the  safety  of  their  parental  home 
and  face  the  risks  incident  to  moving  out 
on  one's  own.  Although  concern  for  in- 
dustrial safety  is  important,  employment 
practices  should  not  foreclose  handi- 
capped employees  from  undertaking  the 
ordinary,  reasonable  risks  some  jobs  en- 
tail. Allowing  handicapped  people  to 
take  their  prudent  share  of  human  risks 
helps  enable  them  to  participate  fully  in 
society:  "To  deny  any  persons  their  fair 
share  of  risk  experiences  is  to  further 
cripple  them  for  healthy  living."104 

The  full  participation  goal  and  the 
principles  it  encompasses  are  points  of 
reference  for  resolving  questions  about 
statutes,  regulations,  legal  rules,  govern- 
ment programs,  and  voluntary  initia- 
tives affecting  handicapped  people.  The 
United  States  Supreme  Court  and  other 
legal  authorities  have  long  recognized 
the  value  of  looking  at  the  underlying 
goal  of  a  law  when  trying  to  interpret 
inconclusive  statutory  language.105  For 
legislation  affecting  handicapped  people, 
Congress  has  unambiguously  declared 
that  objective  to  be  full  participation. 
This  goal  provides  essential  guidance  for 
our  national  efforts  in  designing,  imple- 
menting, and  evaluating  public  and  pri- 
vate programs  concerning  handicapped 
people. 

for  Independent  Living,  "Independent  Living: 
The  Right  to  Choose,"  p.  247. 

103  Robert  Perske,  "The  Dignity  of  Risk,"  The 
Principle  of  Normalization  in  Human  Services,  p. 
195. 

104  Ibid.,  p.  199. 

105  Note,  "The  Supreme  Court,  1981  Term," 
Harv.  L.  Rev.,  vol.  96  (1982),  p.  282,  n.  30,  and  the 
authorities  cited  therein. 


85 


Part  II 

Chapter  5 

Orienting  Principles  of  Handicap  Discrimination 
Law 


The  task  of  translating  almost  30  Fed- 
eral laws  broadly  prohibiting  handicap 
discrimination  into  consistent,  coherent 
legal  standards  is  not  easy.  Courts  and 
regulators  over  the  past  decade  have 
struggled  to  clarify  these  requirements, 
but  many  issues  remain  disputed  or 
relatively  unexamined.  Moreover,  be- 
cause many  conceptual  premises  are 
unarticulated,  rules  developed  in  one 
particular  factual  setting  may  not  apply 
to  even  a  slightly  different  factual  pat- 
tern. Consequently,  in  addition  to  ana- 
lyzing these  standards  and  focusing  on 
the  doctrine  of  reasonable  accommoda- 
tion, part  II  sets  forth  theoretical  points 
of  reference  reconciling  handicap  anti- 
discrimination requirements. 

Often,  unstated  assumptions  about  a 
social  problem  shape  the  approach  peo- 
ple take  to  it.  There  are  two  common 
views  with  distinctly  divergent  assump- 
tions and  approaches  to  the  problem  of 
handicap  discrimination.  Many  people 
see  handicaps  strictly  as  physical  or 
mental  disorders  that  limit  ability.  This 
assumption  leads  to  the  view  that  handi- 
capped people  are  denied  equal  opportu- 
nity principally  because  they  are  "dis- 


abled" and  cannot  take  advantage  of 
many  opportunities.  Limited  opportuni- 
ties for  handicapped  people  are  consid- 
ered to  arise  from  the  handicaps  them- 
selves rather  than  from  societal  choices. 
Under  this  view,  the  inability  of  paraple- 
gics to  maneuver  their  wheelchairs 
through  narrow  doorways  or  up  stairs, 
for  example,  arises  from  their  handicap. 

The  competing  view  emphasizes  that 
societal  actions  and  prejudice  restrict 
opportunities  for  people  with  mental  and 
physical  limitations;  the  selection  of  ar- 
chitectural options  other  than  ramps, 
elevators,  or  wide  doors  is  the  cause  of 
handicap  discrimination.  Proponents  of 
this  view  hold  that  there  are  no  handi- 
capped people — that  it  is  society  that 
"handicaps"  people.  Ignorant  of  their 
abilities  and  designed  to  operate  without 
them,  societal  choices  are  seen  as  exclud- 
ing people  with  handicaps. 

These  opposing  viewpoints  rarely  exist 
in  pure  form.  Those  who  emphasize 
physical  and  mental  limitations  often 
acknowledge  that  prejudices,  not  the 
limitations,  are  the  cause  of  some  denials 
of  opportunity.  Those  who  stress  the 
social    causes   of  handicaps   frequently 


86 


concede  that  there  are  some  individuals 
whose  functional  limitations  prevent 
their  participation.  Nonetheless,  the  two 
views  constitute  basic  points  of  orienta- 
tion that  often  determine  legal  stan- 
dards. 

This  chapter  adopts  a  third  view, 
which  is  based  on  the  nature  of  handi- 
caps, social  conditions,  and  their  inter- 
play. Its  conceptual  premises  are  that  all 
human  physical  and  mental  abilities 
occur  in  spectrums  ranging  from  superb 
to  nonexistent  and  that  social  contexts 
define  the  extent  to  which  people  with 
physical  or  mental  limitations  partici- 
pate in  society.  Because  these  orienting 
principles  together  define  the  basic  na- 
ture of  handicaps,  they  help  distinguish 
conduct  toward  handicapped  people  that 
is  irrational,  unnecessary,  and,  conse- 
quently, discriminatory  from  conduct 
that  appropriately  responds  to  physical 
and  mental  differences  among  people. 

The  Spectrum  of  Physical  and 
Mental  Abilities 

[I]n  nature  there  are  few  sharp  lines. 

[N]o  humbling  of  reality  to  precept.1 

Most  popular  conceptions  and  official 
usages  of  the  term  "handicapped"  are 
based  on  the  idea  that  there  are  observ- 
able physical  and  mental  conditions 
called  "handicaps,"  that  the  people  deno- 


1  H.R.  Ammons,  Corson's  Inlet  (Ithaca,  N.Y.: 
Cornell  Univ.  Press,  1965),  pp.  6  and  8,  lines  31 
and  116. 

2  Other  examples  of  the  range  of  ability  within 
different  visual  functions  include  differences  in 
visual  field  varying  from  "tunnel  vision"  to  those 
with  excellent  peripheral  vision,  and  variations 


minated  handicapped  are  significantly 
impaired  in  ways  that  distinguish  them 
from  "normal"  (nonhandicapped)  people, 
and  that  one  either  is  or  is  not  handi- 
capped. The  underlying  reality,  however, 
is  not  so  easily  categorized.  Instead  of 
two  separate  and  distinct  classes  (handi- 
capped and  normal),  there  are  spectrums 
of  physical  and  mental  abilities  that 
range  from  superlative  to  minimal  or 
nonfunctional. 

The  simplistic  categorization  of 
"blind"  and  "sighted,"  for  example,  actu- 
ally covers  infinite  gradations  and  varia- 
tions of  the  ability  to  see.  Vision  is  not 
one-dimensional,  but  rather  involves  a 
number  of  component  functions,  such  as 
seeing  at  a  distance,  distinguishing  col- 
ors, focusing  on  nearby  objects,  seeing  in 
bright  light,  seeing  in  shade  or  darkness, 
seeing  to  the  side,  and  so  on.  For  each 
such  visual  function  there  is  a  range  of 
abilities.  For  example,  at  one  end  of  the 
visual  acuity  spectrum  are  the  few  peo- 
ple with  unusually  sharp  eyesight — 
those  who  can  read  finer  print  than  that 
on  the  bottom  of  a  doctor's  eye  chart.  At 
the  other  end  are  the  tiny  proportion 
with  no  vision  whatsoever.  The  vast 
majority  of  people  fall  somewhere  be- 
tween these  two  extremes.  A  similar 
continuum  occurs  in  regard  to  other 
component  functions  of  the  ability  to 
see.2 

Intellectual  ability  also  occurs  as  a 
spectrum  and  varies  with  each  individu- 
al the  way  the  eyes  focus,  such  as  amblyopia,  so- 
called  "lazy  eye."  The  parity  or  disparity  of  an 
individual's  eyes  also  varies  greatly:  the  vision 
may  be  approximately  equal  in  both  eyes,  may  be 
clearly  superior  in  one  eye,  or  may  be  present  in 
only  one  eye. 


87 


al  and  with  each  different  discipline  and 
subject  matter.3  Similarly,  mental 
health  and  emotional  stability  occur  as  a 
continuum,  and  people  exhibit  every 
imaginable  degree  of  being  in  touch  with 
reality  and  ability  to  cope  with  the 
demands  of  life.4     Although  commonly 


thought  of  as  a  distinct  and  homoge- 
neous condition,  epilepsy  actually  con- 
sists of  a  range  of  seizure  disorders.5 
Other  conditions  considered  handicaps, 
such  as  speech  impairments,  hearing 
impairments,  learning  disabilities,  and 


3  The  intelligence  quotient  (IQ)  as  measured 
by  an  intelligence  test  is  an  estimation  of  a 
person's  "general  intelligence,"  more  typi- 
cally in  terms  of  one's  ability  to  make 
appropriate  or  adaptive  responses  to  a  vari- 
ety of  situations  occurring  in  everyday  life. 
To  facilitate  the  understanding  of  this  con- 
cept, it  is  helpful  to  view  general  intelligence 
as  if  it  were  a  uninterrupted  continuum.  One 
level  of  intelligence  merges  into  the  next, 
just  as  colors  do  when  seen  through  a 
refracting  prism.  Levels  of  behavior  that 
present  certain  patterns  are  called  defective, 
still  others  dull-normal,  and  so  on  until  the 
other  end  of  the  scale  is  reached,  at  which 
point  they  are  labeled  as  "very  superior"  or 
"genius."  In  the  general  population  this 
spread  of  intelligence  follows  what  is  usually 
referred  to  as  a  normal  distribution  curve. 

Karol  Fishier,  "Psychological  Assessment  Ser- 
vices," The  Mentally  Retarded  Child  and  His 
Family,  ed.  Richard  Koch  and  James  C.  Dobson 
(New  York:  Brunner/Mazel  Publishers  1976),  p. 
176.  Most  people  are  clustered  near  the  middle  of 
the  continuum  of  intelligence,  somewhere  be- 
tween the  genius  level  and  profound  mental 
retardation.  Moreover,  even  those  with  identical 
IQ  scores  differ  widely  in  their  ability  to  deal 
with  various  aspects  of  daily  life.  Intellectual 
ability  also  varies  with  regard  to  different  subject 
matters:  Some  people  are  better  at  mathematical 
concepts  than  literature,  some  do  well  at  history 
but  not  science,  and  so  on.  Thus,  intelligence  is  a 
spectrum  of  relative  degrees,  not  composed  of 
distinct  groups  or  susceptible  to  the  drawing  of 
sharp  lines. 

4  The  United  States  Supreme  Court  has  ob- 
served: "At  one  time  or  another  every  person 
exhibits  some  abnormal  behavior  which  might  be 
perceived  by  some  as  symptomatic  of  a  mental  or 
emotional  disorder,  but  which  is  in  fact  within  a 
range  of  conduct  that  is  generally  acceptable." 
Addington  v.  State  of  Tex.,  441  U.S.  418,  426-27 


(1979).  From  this  hazy  standard  of  relative  nor- 
mality, the  mental  health  spectrum  continues 
through  an  overlapping  range  of  conditions  la- 
beled personality  disorders,  psychosomatic  reac- 
tions, neuroses,  and  psychoses.  Within  each  of 
these  categories  of  psychiatric  labels,  there  are 
endless  variations  and  degrees. 
5  A  seizure  is  an  abnormal  electrical  discharge 
by  nerve  cells  in  the  brain.  The  effects  of  these 
discharges  range  from  the  dramatic  to  the  rela- 
tively inconsequential,  depending  upon  the  num- 
ber of  cells  involved,  the  area  in  which  they  are 
located,  and  the  duration  and  frequency  of  the 
discharges.  Seizures  range  from  the  petit  mal,  an 
almost  unnoticeable  loss  of  consciousness  for  a 
few  seconds,  to  the  grand  mal,  which  may  last  2 
or  3  minutes  or  more  and  involve  a  sudden  loss  of 
consciousness,  falling  to  the  ground,  temporary 
interruption  of  breathing,  and  general  convulsive 
or  shaking  movements.  There  are  all  sorts  of 
variations  in  the  manner  of  onset,  the  parts  of 
the  body  affected,  the  individual's  awareness  of 
the  occurrence,  the  severity  of  the  seizure,  and  its 
aftereffects.  The  effectiveness  of  medication  also 
varies  among  individuals,  eliminating  seizures 
for  some,  reducing  the  frequency  for  others,  and 
failing  completely  for  some  others.  The  end 
result  is  a  wide  range  of  seizure  conditions. 


cosmetic  disfigurements,  also  occur  in 
wide  ranges.6 

Wide  variations  also  occur  in  the  ap- 
plicability of  devices  and  techniques  for 
dealing  with  functional  impairments. 
Wheelchairs,  braces,  walkers,  crutches, 
prosthetic  devices,  canes,  hearing  aids, 
eyeglasses,  and  other  devices  may  en- 
hance the  ability  of  different  persons  to 
different  degrees.  Moreover,  life  experi- 
ence, motivational  factors,  and  personal 
preferences  affect  how  people  deal  with 
their  functional  limitations.  One  person 
who  cannot  see  may  choose  to  use  a  cane, 
a  second  to  use  a  guide  dog,  and  a  third 
to  go  out  only  when  accompanied  by  a 
sighted  guide. 

For  each  human  function,  there  are 
some  who  excel,  some  who  perform 
poorly,  if  at  all,  and  some  who  perform  at 
all  levels  in  between.  This  simple  con- 
cept's relevance  to  discrimination  lies  in 
the  frequency  with  which  it  is  ignored. 
Instead  of  discerning  the  range  of  indi- 
vidual abilities,  society  categorizes  peo- 
ple as  either  blind  or  sighted,  either 
epileptic  or  not  epileptic,  either  handi- 
capped or  normal. 

The  Role  of  Social  Context 

Impairments  in  physical  and  mental 
abilities  undeniably  exist,  but  the  degree 
to  which  they  control  a  person's  partici- 


6     The  United  States  Supreme  Court  has  ac- 
knowledged that  physical  and  mental  abilities 
occur  as  spectrums.  In  Board  of  Education  v. 
Rowley,  the  Court  discussed  the  responsibilities 
of  States  under  the  Education  for  All  Handi- 
capped Children  Act: 
The  Act  requires  participating  States  to  edu- 
cate a  wide  spectrum  of  handicapped  chil- 
dren, from  the  marginally  hearing-impaired 
to  the  profoundly  retarded  and  palsied.  It  is 
clear  that  the  benefits  obtainable  by  children 


pation  in  society  is  as  much  inherent  in 
the  social  context  as  in  the  impairment. 
Depending  on  circumstances,  certain 
abilities  are  crucial,  while  others  are 
unimportant.  Virtually  everyone  is 
"handicapped"  for  one  purpose  or  anoth- 
er: 


Handicapped  is  a  word  Henry  Vis- 
cardi  [an  employment  authority] 
never  uses.  "Can  you  sing  high  C?" 
he  likes  to  say.  "No?  Then  you  are 
totally  and  permanently  disabled  for 
an  opera  career.  You're  probably  not 
fit  to  pitch  for  the  Yankees,  either."7 


A  Federal  district  court  made  a  similar 
observation  in  discussing  the  relativity  of 
impairments: 


Most  citizens  would  be  handicapped 
in  playing  baseball  as  compared  to 
Carl  Yastrzemski,  in  singing  as  com- 
pared to  Beverly  Sills,  in  abstract 
thinking  as  compared  to  Albert  Ein- 
stein, and  in  the  development  of  a 
sense  of  humor  as  compared  to 
Woody  Allen.  Human  talent  takes 
many  forms,  and  within  each  talent 
is  a  continuum  of  achievement. 
While  one  individual  might  be  on 
the  high  end  of  the  scale  of  achieve- 
ment in  one  area,  that  same  individ- 

at  one  end  of  the  spectrum  will  differ  dra- 
matically from  those  obtainable  by  children 
at  the  other  end,  with  infinite  variations  in 
between. 


102  S.Ct.  at  3048-49.  See  also  Garrity  v.  Gallen, 

522  F.  Supp.  171,  206  (D.N.H.  1981). 

7     Edward  Sullivan,  "Henry  Viscardi  and  the 

Mislabeled  Disabled,"  The  Sign,  October  1967,  pp. 

36-37. 


89 


ual  might  rank  very  low  in  another 
area.  Woody  Allen  will  probably 
never  win  the  Triple  Crown,  and 
Carl  Yastrzemski  is  not  likely  to 
perform  "Aida."  In  sum,  the  identifi- 
cation of  various  gradations  of  hand- 
icap is  not  an  easy  task,  especially  if 
such  is  attempted  in  a  vacuum. 
Assessing  the  capability  of  various 
individuals  to  perform  without 
knowledge  of  the  particular  task 
under  consideration  and  its  various 
requirements,  or  without  an  individ- 
ualized determination  of  their 
strengths  and  weaknesses  would  ap- 
pear to  be  impossible.8 

Concepts  of  normality  and  abnormality 
and  of  ability  and  disability  have  no  real 
meaning  unless  they  are  considered  in 
the  context  of  the  nature  and  purpose  of 
a  particular  task  or  activity. 

The  great  flexibility  that  exists  for 
accomplishing  most  tasks  and  activities 
confirms  this  perspective.  It  is  often 
incorrectly  assumed  that  there  is  only 
one  way  of  doing  something — the  cus- 
tomary way  that  "normal"  people  do  it. 
But  programs,  activities,  and  facilities 
may  actually  be  organized  and  struc- 
tured in  a  variety  of  ways.  The  assign- 
ment of  tasks  and  the  methods  of  per- 
forming them  can  be  changed  in  re- 
sponse to  the  abilities  and  characteristics 
of  the  person  involved.  As  the  simple  and 


8  Garrity  v.  Gallen,  522  F.  Supp.  171,  206 
(D.N.H.  1981).  See  also  E.E.  Black,  Ltd.  v.  Mar- 
shall, 497  F.  Supp.  1088, 1100  (D.  Haw.  1980). 

9  In  the  opinion  of  some  business  leaders,  some 
declines  in  productivity  in  American  industry 
have  resulted  from  an  unwillingness  to  consider 
alternative  methods  of  designing  products,  man- 
ufacturing equipment,  and  organizing  factories, 
while  Japanese  industries,  for  example,  adopted 
more  flexible  automated  manufacturing  systems. 


inexpensive  changes  listed  in  the  intro- 
duction to  this  monograph  prove,  many 
impediments  can  easily  be  removed 
without  sacrificing  overall  purposes  and 
performance. 

Although  it  is  sometimes  difficult  to 
see  alternatives  when  "things  have  al- 
ways been  done  that  way,"  the  tasks  that 
comprise  most  jobs  are  often  easily 
changed.9  A  secretarial  position,  for 
example,  frequently  requires  filing,  an- 
swering the  telephone,  taking  dictation, 
typing,  and  ordering  supplies.  But  no 
factor  inherent  in  the  position  of  secre- 
tary demands  that  all  the  secretaries  in 
the  same  office  be  able  to  do  the  same 
things.10  In  an  office  with  several  secre- 
taries, these  tasks  might  be  assigned  in 
various  ways  to  achieve  the  same  results 
despite  different  functional  limitations. 
For  example,  a  person  with  no  hearing 
might  perform  typing,  filing,  and  order- 
ing supplies  (and  perhaps  take  dictation 
by  lipreading)  but  not  answer  tele- 
phones. 

In  addition,  there  are  different  ways  of 
performing  each  secretarial  task.  Dicta- 
tion, for  example  may  be  taken  with  a 
tape  recorder  instead  of  shorthand;  let- 
ters can  be  typed  on  a  word  processor 
that  vocalizes  letters  or  words  that  ap- 
pear on  the  screen  instead  of  a  standard 
typewriter.  In  each  case,  one  functional 

See  Gene  Bylinsky,  "The  Race  to  the  Automated 
Factory,"  Fortune,  Feb.  21,  1983,  pp.  52,  60,  64. 
Although  this  example  does  not  directly  involve 
handicapped  people,  it  suggests  in  a  broader 
context  how  much  flexibility  there  is  for  accom- 
plishing tasks  and  activities  and  producing  goods 
and  services. 

10  Some  overlap  of  duties,  of  course,  may  be 
desirable  to  allow  employees  to  cover  the  duties 
of  temporarily  absent  personnel. 


90 


ability  substitutes  for  another  that  may 
be  impaired  or  missing. 

One  way  of  seeing  the  flexibility  to 
carry  out  most  tasks  or  activities  is  to 
analyze  their  essential  aspects.  A  New 
York  State  judge,  for  instance,  has  dis- 
tinguished the  essential  aspects  of  the 
vocation  of  teaching  from  the  inessential: 


[T]he  majority  points  out  that  a 
blind  teacher  (1)  cannot  possibly 
maintain  proper  discipline  in  the 
classroom  or  prevent  altercations 
between  students  so  as  to  avoid 
consequent  lawsuits  against  the  city; 
(2)  mark  the  attendance  rolls  or 
grade  written  test  papers;  (3)  super- 
vise or  direct  fire  drills  and  proper 
use  of  stairways  in  emergencies  and 
(4)  perform  other  administrative  du- 
ties during  non-teaching  periods. 


All  this  may  readily  be  conceded. 
But  what  the  majority  overlooks  is 
that  none  of  these  disciplinary,  ad- 
ministrative or  clerical  duties  re- 
lates in  the  slightest  degree  to  the 
basic  qualification  or  fitness  to 
teach.  True,  these  incidental  duties 
must  be  performed.  But  the  Board, 
in  furtherance  of  the  fundamental 
policy  of  the  State  with  respect  to 
the  employment  of  blind  teachers 
otherwise  qualified,  may  easily  ar- 
range for  their  performance  by  other 
sighted  persons,  whether  such  sight- 
ed persons  be  teachers,  clerks  or 
more  mature  students.  Essentially 
the  situation  is  one  of  mutual  accom- 


11  Matter  of  Chavich  v.  Board  of  Examiners  of 
Bd.  of  Educ.  of  City  of  N.  Y.,  23  A.D.2d  57,  67-68, 
258  N.Y.S.2d  677,  687  (App.  Div.  1965)  (dissenting 
opinion  of  Rabin,  J.),  adopted  in  Bevan  v.  New 
York  State  Teachers  Retirement  Sys.,  74  Misc.2d 


modation  and  adjustment  by  all  con- 
cerned.11 


Regardless  of  whether  one  agrees  with 
the  court's  formulation  of  what  tasks  a 
teacher  must  perform  to  teach,  the  ana- 
lytical process  shows  how  an  accommo- 
dation can  permit  a  handicapped  individ- 
ual's participation.  Understanding  that 
the  job  of  teaching  does  not  necessarily 
require  the  performance  of  administra- 
tive or  disciplinary  tasks  usually  associ- 
ated with  it  helps  to  suggest  appropriate 
alternatives  allowing  a  person  with  no 
vision  to  teach. 

Relating  the  Spectrum  of 
Abilities  to  Social  Contexts 

The  consequences  of  functional  im- 
pairments vary  with  each  task  and  the 
different  ways  it  may  be  accomplished. 
As  a  result,  the  correlation  between  an 
individual's  place  on  the  spectrum  of 
particular  abilities  and  his  or  her  capaci- 
ty to  participate  fully  in  society  is  not  as 
direct  or  uniform  as  is  commonly  sup- 
posed. There  are  important  distinctions 
between  mental  and  physical  differences, 
functional  impairments,  activity  restric- 
tions, and  vocational  and  avocational 
limitations.  Handicap  discrimination  oc- 
curs when  decisionmakers  gloss  over 
these  distinctions  by  assuming  that  phys- 
ical or  mental  differences  invariably 
limit  abilities  and  preclude  participation. 

Each  individual  differs  from  all  others 
mentally  and  physically.  Not  all  mental 
and  physical  differences,  of  course,  are 
viewed  as  negative.  Traits  like  extremely 

443,  345  N.Y.S.2d  921  (N.Y.  Sup.  Ct.  1973).  See 
also  Gurmankin  v.  Costanzo,  411  F.  Supp.  982, 
986-88  (E.D.  Pa.  1976),  affd  556  F.2d  184  (3d  Cir. 

1977). 


91 


high  intelligence,  double-jointedness, 
and  photographic  memory,  for  example, 
are  not  considered  limitations.  Our  soci- 
ety, however,  frequently  operates  on  the 
faulty  assumption  that  mental  and  phys- 
ical differences  must  be  measured 
against  a  norm  and  that  anyone  whose 
abilities  fall  below  this  norm  is  abnor- 
mal. 

Mental  or  physical  differences  that 
interfere  with  ability  to  function  are  said 
to  produce  functional  impairments  or 
limitations.  All  that  functional  impair- 
ment means,  however,  is  that  some  par- 
ticular part  of  the  body  or  aspect  of  the 
mind  does  not  operate  the  way  it  does  for 
most  people.12  Functional  impairments 
include  joints  that  do  not  permit  the 
usual  ranges  of  motion,  nerves  that  do 
not  transmit  messages  correctly  to  the 
brain  or  muscles,  and  mental  irregulari- 
ties that  prevent  people  from  absorbing 
or  interpreting  appropriate  sensations 
and  data.  These  impairments,  of  course, 
are  not  either-or  propositions;  each  oc- 
curs in  a  spectrum  of  degrees. 

Activities  may  be  thought  of  as  groups 
or  clusters  of  functions.  The  activity  of 
swimming,  for  example,  involves  the 
functions  of  pulling  with  the  arms,  kick- 
ing with  the  legs,  turning  to  breathe,  and 
so  on.  Functional  impairments  may  or 
may  not  act  as  activity  restrictions  for 
various  reasons.  First,  one  functional 
limitation  does  not  necessarily  affect  a 
person's  other  abilities.  Having  impaired 


12  Additionally,  some  people  who  do  not  have  an 
actual  functional  impairment  may  be  perceived 
and  treated  as  if  they  do: 

A  person  with  epilepsy,  for  example,  clearly 
has  a  medical  irregularity.  If,  however,  the 
person's  condition  can  be  controlled  through 
medication,  there  does  not  have  to  be  any 
functional  impairment  whatev- 
er. .  .  .Likewise,  persons  with  serious  cos- 


hearing,  for  example,  does  not  limit 
activities  like  running,  swimming,  and 
reading.  Only  those  activities  that  direct- 
ly involve  the  impaired  function  will  be 
affected.  Second,  activities  can  often  be 
accomplished  by  substituting  another 
functional  ability  for  one  that  is  im- 
paired. Thus,  people  with  limited  hear- 
ing may  use  their  eyes  to  lipread  (speech 
read),  or  a  person  who  cannot  use  normal 
strokes  to  swim  because  of  an  amputated 
arm  may  learn  different  strokes  that 
require  only  one  arm.  Third,  the  way  an 
activity  is  described  may  determine 
whether  an  individual  with  a  functional 
impairment  can  accomplish  it.  For  exam- 
ple, a  person  whose  legs  are  paralyzed 
may  not  be  able  to  perform  the  activity 
of  walking.  But  if  the  activity  is  de- 
scribed as  locomotion  or  getting  from 
place  to  place,  a  person  in  a  wheelchair 
may  be  perfectly  capable  of  performing 
it.  Finally,  mechanical  devices  or  other 
aids  may  reduce  or  eliminate  the  extent 
to  which  functional  impairments  restrict 
activities. 

Activity  restrictions,  in  turn,  may  or 
may  not  lead  to  vocational  and  avoca- 
tional  limitations.  A  person  whose  func- 
tional impairment  restricts  a  particular 
activity  cannot  perform  a  job  or  engage 
in  a  pastime  of  which  that  activity  is  an 
essential  component — unless  another  ac- 
complishable activity  can  be  substituted 
for  it.  A  quadriplegic  cannot  be  an  NFL 
fullback,  and  a  mentally  retarded  person 

metic  disfigurements  may  be  considered 
handicapped  but  have  no  functional  impair- 
ments. .  .  . 


Robert  Burgdorf,  Jr.,  ed.,  The  Legal  Rights  of 
Handicapped  Persons  (Baltimore:  Brookes  Pub- 
lishing Co.,  1980),  p.  8  (hereafter  cited  as  The 
Legal  Rights  of  Handicapped  Persons). 


92 


is  unlikely  to  become  an  astrophysicist. 
But  by  dictating  notes,  letters,  reports, 
and  similar  materials  instead  of  hand- 
writing them,  a  quadriplegic  may  be  able 
to  perform  very  well,  for  example,  as  a 
college  professor,  office  worker,  lawyer, 
or  economist.  And  by  dividing  instruc- 
tional materials  and  training  into  simple 
direct  steps,  an  employer  or  educator 
may  enable  a  severely  mentally  retarded 
person  to  perform  complex  tasks.  No 
social  setting  will  be  entirely  neutral 
with  respect  to  all  functional  impair- 
ments. All  societies  organize  tasks  and 
activities  according  to  values  and  needs. 
Particular  tasks  will  always  call  upon 
some  cluster  of  abilities  that  will  advan- 
tage some  and  disadvantage  others. 

Understanding  these  distinctions 
makes  it  easier  to  distinguish  when  a 
physical  or  mental  difference  unavoid- 
ably limits  vocational  or  avocational  pur- 
suits from  when  the  controlling  cause  is 
prejudice  or  an  overly  rigid  social  set- 
ting. Because  not  all  physical  or  mental 
differences  cause  functional  impair- 
ments, and  not  all  functional  impair- 
ments restrict  activities,  and  not  all 
activity  restrictions  cause  vocational  or 
avocational  limitations,  actions  based  on 
the  assumption  that  people  with  a  partic- 
ular type  of  handicap  are  incapable  of 
participating  in  a  given  opportunity  fre- 
quently are  discriminatory. 

Due  to  the  complexity  and  diversity  of 
social  and  economic  contexts,  the  corre- 
lations of  functional  impairments  to  ac- 
tivity restrictions,  and  of  activity  restric- 
tions to  vocational  and  avocational  limi- 
tations, are  inexact  and  complicated.13 

13  Another  layer  of  complexity  results  if  one 
goes  beyond  the  question  of  vocational  and 
avocational  pursuits  and  looks  at  standards  of 


Just  as  individuals  are  infinitely  varied, 
society  has  an  extremely  broad  range  of 
institutions,  programs,  tasks,  and  activi- 
ties. As  a  result,  the  process  of  matching 
particular  persons  who  have  specific 
functional  impairments  with  appropri- 
ate opportunities  to  participate  in  our 
diverse  and  complex  society  necessarily 
is  highly  intricate  and  individualized. 

Nonetheless,  if  both  the  needs  of  the 
program  and  the  abilities  of  the  person 
are  viewed  individually,  people  with  var- 
ying functional  impairments  may  be 
"matched"  with  many  programs  and 
activities  in  ways  that  permit  their  full 
participation.  This  issue  of  matching 
people  and  programs  is  central  to  the 
doctrine  of  reasonable  accommodation 
and  will  be  developed  further  in  chapter 
6.  The  existing  view  of  handicapped 
people  and  their  ability  to  participate  is 
quite  different. 

Reality  Distorted:  The 
Handicapped-Normal  Dichotomy 

Structuring  society's  tasks  and  activi- 
ties on  the  basis  of  assumptions  about 
the  normal  ways  of  doing  things  reflects 
the  idea  that  there  are  "normal"  people 
who  can  participate  and  there  are  people 
with  physical  and  mental  handicaps  who 
cannot.  When  people  are  classified  as 
either  handicapped  or  normal,  the  only 
questions  are  who  falls  into  which  cate- 
gory and  what  criteria  are  used.  A  close 
examination  of  this  handicapped-normal 
dichotomy,  however,  reveals  fundamen- 
tal flaws:  it  ignores  the  fact  that  abilities 
occur  as  spectrums,  not  as  all-or-nothing 

success  in  life.  See  The  Legal  Rights  of  Handi- 
capped Persons,  pp.  8-9. 


93 


categories,  and  discounts  the  importance 
of  social  context.14  The  resulting  distor- 
tion of  reality  is  the  wellspring  of  handi- 
cap discrimination. 

All  people  observe  each  other's  abili- 
ties, characteristics,  and  limitations. 
People  notice,  for  example,  that  Tom  is 
very  agile,  that  Mary  does  not  hear  what 
is  said  to  her,  that  one  of  Joe's  arms  has 
been  amputated,  that  Sally's  mind  works 
very  quickly,  that  Hal  can  perform  only 
simple  tasks,  that  Ted  cannot  move  his 
arms  and  legs,  and  so  on.  These  are 
concrete,  discernible  aspects  of  reality. 
Because  each  society  needs  ways  of 
thinking  about  and  communicating  such 
observations,  its  members  create  gener- 
alized rules  for  classifying  and  labeling 
reality.  Each  socially  accepted  abstrac- 
tion from  the  observable,  immediate  re- 
ality, however,  risks  distortion,  which 
can  lead  to  discrimination. 

The  handicapped-normal  dichotomy 
distinguishes  normal  functioning  levels 
from  "defective"  ones.  But  because  men- 
tal and  physical  abilities  occur  in  spec- 
trums,  efforts  to  draw  such  sharp  divid- 
ing lines  are  inevitably  arbitrary  and 
often  misleading.15  Defining  20/20  as  the 
standard  for  normal  visual  acuity  is  an 
arbitrary  convention.  For  functional 
abilities  that  are  distributed  through  the 
population  in  an  approximation  of  the 
bell-shaped  normal  distribution  curve,16 

14  For  a  discussion  of  the  complexities  inherent 
in  concepts  of  disabilities,  impairments,  and 
limitations,  and  the  problems  with  dichotomizing 
the  continuum  of  disability,  see  Irving  Howards, 
Henry  P.  Brehm,  and  Saad  Z.  Nagi,  Disability: 
From  Social  Problem  to  Federal  Program  (New 
York:  Praeger,  1980),  pp.  31-34,  121-22,  and  the 
authorities  cited  therein. 

15  See,  e.g.,  Prudence  M.  Rains,  John  I.  Kitsuse, 
Troy  Duster,  and  Eliot  Friedson,  "The  Labeling 
Approach  to  Deviance,"  Issues  in  the  Classifica- 


the  demarcation  is  frequently  based  on 
the  statistical  concept  of  "standard  devi- 
ations" from  the  median.  For  other  con- 
ditions, such  as  epilepsy  and  psychiatric 
disorders,  the  judgment  of  what  is  nor- 
mal and  what  is  abnormal  or  defective  is 
left  largely  to  the  discretion  of  the  medi- 
cal practitioner. 

Whether  derived  from  mathematical 
logic  or  professional  discretion,  any  line 
that  labels  some  levels  of  ability  as 
normal  and  others  as  abnormal  breaks 
an  infinite  spectrum  of  human  function- 
ing into  two  distinct  categories.  The 
artificiality  of  such  categorization  is  es- 
pecially apparent  when  one  examines 
the  individuals  who  fall  immediately  on 
opposite  sides  of  the  dividing  line.  One  is 
normal  and  the  other  is  "abnormal," 
even  though  they  have  more  in  common 
with  each  other  than  with  those  whose 
abilities  are  farther  away  from  the 
boundary  line. 

Another  aspect  of  the  handicapped- 
normal  classification  involves  the  cre- 
ation of  disability  categories,  such  as 
orthopedic  handicaps,  blindness, 
deafness,  mental  illness,  mental  retarda- 
tion, and  learning  disabilities.  Such  cate- 
gories are  based  on  the  classification 
schemes  described  above  and  bear  the 
resulting  imprecision  and  mischaracteri- 
zations.  They  also  lump  a  variety  of 
conditions  under  a  single  label.  A  person 

tion  of  Children,  ed.  Nicholas  Hobbs  (San  Fran- 
cisco: Jossey-Bass,  1975),  vol.  1,  p.  91  (hereafter 
cited  as  Issues  in  the  Classification  of  Children). 
16  The  normal  distribution  or  Gaussian  curve  is 
a  schematic  representation  of  the  distribution  of 
various  characteristics  and  of  other  mathemati- 
cal and  statistical  phenomena.  See,  e.g.,  Interna- 
tional Encyclopedia  of  Statistics  (New  York:  Free 
Press,  1978),  pp.  161-62;  A.L.  OToole,  Elementary 
Practical  Statistics  (New  York:  Macmillan,  1964), 
pp.  158-80. 


94 


who  has  an  amputated  foot,  a  person 
with  a  spinal  disorder,  and  a  person  who 
is  unable  to  move  an  elbow  joint  due  to 
arthritis,  for  example,  are  all  encom- 
passed by  the  single  heading  "orthopedi- 
cally  impaired." 

How  handicapped  one  must  be  to  be 
covered  by  a  disability  grouping — how 
much  motor  limitation  constitutes  an 
"orthopedic  handicap,"  how  much  hear- 
ing loss  constitutes  "deafness,"  and  so 
on — are  determined  as  much  by  society 
as  by  real  physical  or  mental  differenc- 
es.17 When  the  American  Association  on 
Mental  Deficiency  redefined  the  term 
"mental  retardation"  in  1973,  it  clearly 
illustrated  how  extensively  disability 
groupings  reflect  the  classification  and 
labeling  process  itself: 

Before  the  redefinition,  mentally  re- 
tarded included  all  those  persons 
whose  scores  on  standardized  tests 
were  one  standard  deviation  below 
the  norm;  afterward,  only  those  who 
were  two  standard  deviations  below 
the  norm  were  included.  By  this 
definitional  shift,  about  eight  mil- 
lion persons  who  had  been  labeled 
"borderline  mentally  retarded"  were 
no  longer  considered  mentally  re- 
tarded at  all,  and  the  incidence  of 


17  The  distinction  is  not  "given,"  so  to  speak, 
by  reality.  Instead,  salient  and  socially 
meaningful  differences  among  persons  (and 
acts)  are  a  product  of  our  ways  of  looking, 
our  schemes  for  seeing  and  dealing  with 
people.  Thus,  people  are  made  different — 
that  is,  socially  differentiated — by  the  pro- 
cess of  being  seen  and  treated  as  different  in 
a  system  of  social  practices  that  crystallizes 
distinctions  between  deviant  and  conven- 
tional behavior  and  persons.  For  example, 
the  legal  definition  of  blindness  is  clear-cut, 
but  it  includes  poorly  sighted  persons  as  well 
as  persons  who  are  totally  impaired  visually. 


mental  retardation  was  reduced 
from  approximately  3%  to  approxi- 
mately 1%  of  the  population.18 

Such  an  example  demonstrates  that 
lines  drawn  to  create  disability  catego- 
ries cannot  accurately  reflect  qualitative 
differences  or  clearly  distinguish  the 
"handicapped"  group  from  others. 

The  overall  status  category  "handi- 
capped person"  compounds  all  these 
problems  of  arbitrariness  by  lumping 
together  all  the  physical  and  mental 
differences  considered  abnormal  by  soci- 
ety.19 A  blind  person,  an  amputee,  a 
mentally  retarded  person,  a  person  with 
epilepsy,  a  deaf  person,  and  a  learning- 
disabled  person  may  have  nothing  in 
common  with  each  other  and  yet  be 
grouped  together  as  handicapped  per- 
sons. Conditions  denominated  handicaps 
frequently  share  nothing  with  each  other 
except  the  label: 


Whatever  characteristics  such  indi- 
viduals may  or  may  not  have  had  in 
common  prior  to  their  classification, 
it  is  their  involvement  in  the  classi- 
fiction  process  that  has  generated 
the  characteristics  they  all  share — 

The  legal  definition  therefore  serves  to  crys- 
tallize blindness  as  both  a  social  status  and 
an  experience  of  self  for  those  persons  who 
might  not  otherwise  have  defined  themselves 
as  blind. 


Rains,  Kitsuse,  Duster,  and  Friedson,  Issues  in 
the  Classification  of  Children,  p.  94. 

18  The  Legal  Rights  of  Handicapped  Persons,  p. 
12  see  also  the  authorities  cited  therein. 

19  See  Jacobus  ten  Broek  and  Floyd  W.  Matson, 
"The  Disabled  and  the  Law  of  Welfare,"  Cal.  L. 
Rev.,  vol.  54  (1966),  p.  11. 


95 


their  social  fate  as  members  of  a 
status  category.20 

As  a  United  States  court  of  appeals  has 
observed:  '"The  handicapped'.  .  .are  not 
a  homogeneous  group,  and  all  that  those 
who  come  within  the  rubric  'handi- 
capped' share  is  some  trait  outside  the 
normal  range  of  capabilities  for  that 
trait."21 

The  overall  handicap  status  category 
may  be  the  most  distorting  of  the  various 
societal  abstractions  and  generalizations 
regarding  the  functional  differences  of 
people.  It  fosters  the  erroneous  idea  that 
all  people  who  differ  significantly  from 
the  norm  in  regard  to  any  functional 
ability  are  somehow  alike  and  should  be 
treated  similarly  to  each  other  and  dif- 
ferently from  the  rest  of  society.22 

The  fact  that  drawing  lines  through 
the  continuum  of  real  differences  among 
people  distorts  reality  does  not  mean 
that  classifications  should  never  occur. 
To  classify,  study,  and  communicate 
about  similar  types  of  functional  impair- 
ments, society  needs  ways  to  standardize 
descriptions  of  functional  abilities.  As  a 


20  Rains,  Kitsuse,  Duster,  and  Friedson,  Issues  in 
the  Classification  of  Children,  pp.  91-92. 

21  Shirey  v.  Devine,  670  F.2d  1188, 1204  (D.C.  Cir. 
1982). 

22  The  problems  created  by  the  handicapped- 
normal  dichotomy  paradoxically  have  required 
the  use  of  the  terms  "handicap"  and  "handi- 
capped person"  in  Federal  and  State  legislation. 
Such  terminology  gives  the  appearance  of  accept- 
ing the  handicapped-normal  dichotomy.  It  may 
also  create  an  impression  that  the  distinctions 
between  those  labeled  handicapped  and  others 
are  legislatively  authorized  or  mandated.  Such 
appearances  should  not  obscure  the  fact  that 
Federal  laws  use  these  terms  in  remedial  and 
rational  ways  to  provide  opportunities  and  ser- 
vices previously  unavailable  to  many  people.  It  is 
appropriate  to  speak  of  a  class  of  handicapped 


result,  we  use  measurements  (such  as 
eye  charts,  audiometers,  and  IQ  tests) 
and  terminology  (such  as  quadriplegia, 
epileptic  seizure,  and  schizophrenia). 
These  classifications  necessarily  sacrifice 
some  degree  of  specificity  and  concrete- 
ness.23  But  as  long  as  the  arbitrariness  of 
the  labels  and  categories  is  recognized 
and  their  usage  appropriately  confined, 
such  classifications  can  be  valid  and 
constructive.  In  particular,  the  more 
closely  the  function  and  placement  of 
any  classifying  line  are  related  to  the 
task  or  purpose  for  which  the  categoriza- 
tion is  made,  the  more  appropriate  the 
dividing  line  is.  For  example,  ability  to 
see  a  radar  screen  is  essential  to  per- 
forming a  job  as  an  air  traffic  controller. 
Insofar  as  a  visual  acuity  standard  can 
be  correlated  with  ability  to  read  a  radar 
screen  accurately,  the  use  of  such  a 
standard  is  an  appropriate  limitation 
upon  job  eligibility  for  an  air  traffic 
controller  position.  On  the  other  hand,  a 
requirement  of  normal  vision  for  a  job  as 
lawyer  is  of  doubtful  validity,  given  that 
many  blind  attorneys  are  currently  prac- 
ticing law  in  a  wide  variety  of  contexts,24 

people  when  certain  individuals  have  been  sin- 
gled out,  designated  handicapped,  and  treated 
poorly  as  a  result.  To  rectify  this  situation, 
legislative  remedies  have  to  focus  on  the  disad- 
vantaged class  of  handicapped  persons. 

23  The  eye  chart,  for  example,  measures  only  a 
person's  ability  to  see  a  particular  type  of  print- 
ing on  a  particular  background  in  the  particular 
lighting  and  conditions  in  which  the  testing 
occurred;  an  IQ  test  measures  test-taking  skills 
as  well  as  aspects  of  overall  intelligence;  and 
terms  like  "epileptic  seizure"  include  a  broad 
diversity  of  conditions  and  manifestations. 

24  For  example,  the  American  Blind  Lawyers 
Association  is  a  national  association  of  partially 
sighted  and  totally  blind  attorneys  that  has 
approximately  150  members.  1982  American 
Blind  Lawyers  Membership  Directory.  But  see 


96 


and  exclusion  of  all  blind  applicants 
from  positions  of  school  teachers  has 
been  held  to  be  unjustified  discrimina- 
tion on  the  basis  of  handicap.25 

The  handicapped-normal  dichotomy 
mirrors  a  view  of  handicapped  people  as 
inherently  limited  in  ability,  in  contrast 
to  the  "healthy"  and  the  "majority  of 
reasonably  fit  people  who  are  the  work- 
ers and  earners."26  This  perspective  can 
lead  those  who  plan  services,  programs, 
and  facilities27  to  overlook  "those  who 
vary  more  than  a  certain  degree  from 
what  we  have  been  conditioned  to  regard 
as  normal."28  As  a  result,  except  for 
programs  specifically  targeted  for  the 
handicapped  population,  virtually  all  of 
society — from  its  sidewalks  to  its  school- 
rooms to  its  jobs — has  until  very  recently 
been  designed  for  people  whose  abilities 
fall  in  what  has  been  labeled  the  normal 
range.  Some  authorities  describe  this 
problem  as  first  and  foremost  a  result  of 
"simple  thoughtlessness"  and  "primarily 

Coleman  v.  Darden,  595  F.2d  533  (10th  Cir.  1979), 
cert,  denied,  444  U.S.  927  (1979). 

25  Gurmankin  v.  Costanzo,  411  F.  Supp.  982  (E.D. 
Pa.  1976),  affd,  556  F.2d  184  (3d  Cir.  1977), 
vacated  on  other  grounds,  626  F.2d  1115  (3d  Cir. 
1980),  cert,  denied,  450  U.S.  923  (1981)  (the 
district  court  noted  that  over  400  blind  persons 
were  teachers  in  the  U.S.  411  F.  Supp.  at  986); 
Zorick  v.  Tynes,  372  So.2d  133  (Fla.  Dist.  Ct.  App. 
1979). 

26  Henry  Fairlie,  "Overdoing  Help  For  the 
Handicapped,"  The  Washington  Post,  June  1, 
1980,  p.  D-3. 

27  "Our  buildings,  communications  technologies, 
modes  of  transportation,  and  other  programs 
were  developed  to  meet  the  needs  of  people  who 
lived  in  the  community;  disabled  individuals, 
who  did  not,  were  not  considered  in  the  planning 
of  these  facilities  and  services."  Frank  Bowe, 
statement,  Civil  Rights  Issues  of  Handicapped 
Americans:  Public  Policy  Implications,  a  consul- 
tation sponsored  by  the  U.S.  Commission  on  Civil 
Rights,  Washington,  D.C.,  May  13-14, 1980,  p.  10. 

28  "Report  of  the  United  Nations  Expert  Group 


a  matter  of  oversight."29  The  assumption 
that  handicapped  people  are  fundamen- 
tally different  and  inherently  restricted 
in  their  abilty  to  participate  becomes 
self-fulfilling  as  handicapped  people  are 
excluded  from  education,  employment, 
and  other  aspects  of  society  by  these 
consequences  of  the  handicapped-normal 
dichotomy. 

Legal  Implications  of  the 
Spectrum  and  Social  Context 
Principles 

In  reality,  vocational  and  avocational 
limitations  result  from  the  interactions 
of  physical  and  mental  differences  occur- 
ring as  spectrums  and  social  contexts 
determining  the  consequences  of  these 
differences.  But  societal  responses  based 
on  the  handicapped-normal  dichotomy 
distort  this  reality.  This  discrepancy  be- 
tween what  actually  exists  and  how 
society  has  responded  to  it  is  the  essence 
of  handicap  discrimination.  As  a  result, 

Meeting  on  Barrier-Free  Design,"  International 
Rehabilitation  Review,  vol.  26  (1975),  p.  3.  See 
also  Lloyd  Burton,  "Federal  Government  Assis- 
tance for  Disabled  Persons:  Law  and  Policy  in 
Uncertain  Transition,"  Law  Reform  in  Disability 
Rights:  Articles  and  Concept  Papers,  vol.  2 
(Berkeley:  Disability  Rights  Education  and  De- 
fense Fund,  1981),  p.  B-16. 

29  Kent  Hull,  The  Rights  of  Physically  Handi- 
capped People  (New  York:  Avon  Books,  1979),  p. 
67.  The  United  States  Congress  concurred  in  this 
view  that  an  out-of-sight,  out-of-mind  attitude 
toward  handicapped  persons  has  led  to  their 
being  overlooked  in  the  planning  process  and  has 
resulted  in  the  creation  of  the  barriers  to  their 
integration  into  society:  "Until  this  Nation  has 
the  foresight  to  include  in  all  of  its  planning  the 
need  to  make  all  areas  of  society  accessible  and 
usable  to  individuals  with  handicaps,  they  will 
continue  to  be  excluded  and  will  have  little  or  no 
opportunity  to  achieve  their  basic  human  right  of 
full  participation  in  life  and  society."  S.  Rep.  No. 
1297,  93rd  Cong.,  2d  Sess.  56,  reprinted  in  1974 
U.S.  Code  Cong,  and  Ad.  News  6373,  6406. 


97 


the  spectrum  and  social  context  orient- 
ing principles  have  profound  implica- 
tions for  handicap  discrimination  law. 
They  elucidate  the  basic  legal  concepts 
guiding  handicap  discrimination  law, 
which  are  discussed  below,  which  then 
generate  the  more  specific  legal  stan- 
dards discussed  in  the  next  chapter. 

Exclusions  Based  on  Inaccurate 
Generalizations 

Because  it  inherently  blurs  key  dis- 
tinctions, the  handicapped-normal  dicho- 
tomy reflects  and  causes  unwarranted 
assumptions  about  handicapped  people's 
abilities  that,  in  turn,  result  in  discrimi- 
nation. Such  discrimination  occurs  when 
disability  classifications  arbitrarily  dis- 
qualify handicapped  people  from  partici- 
pating. For  legal  purposes,  two  major 
types  of  exclusionary  classifications  can 
be  distinguished:  traditional  disability 
classifications  and  selection  criteria.30 

Traditional  disability  classifications 
define  excluded  groups  through  labels 
such  as  blind,  deaf,  or  quadriplegic.  Stig- 
matizing as  well  as  excluding,31  these 
blanket  exclusions  reflect  assumptions 
about  correlations  between  physical  and 
mental  impairments,  activity  restric- 
tions, and  vocational  and  avocational 
limitations  of  the  individuals  so  labeled. 
Because   these   assumptions   frequently 


30  The  legal  standards  governing  exclusionary 
classifications  are  examined  in  chap.  6  in  the 
section  entitled  "Exclusionary  Classifications." 

31  The  stigmatizing  aspects  of  handicap  discrimi- 
nation are  discussed  in  chap.  2  in  the  subsection 
entitled  "Stigmatization." 

32  Many  handicapped  people  purchase  for  per- 
sonal use  prescription  medications  or  devices  to 
ameliorate  the  effects  of  disability-caused  func- 
tional limitations,  e.g.,  medications  for  epilepsy, 
eyeglasses,  magnifying  glasses,  hearing  aids, 
canes,  crutches,  walkers,  etc.  Other  handicapped 
people   may   even   supply   their   own    personal 


are  incorrect,  disability  status  categories 
often  include  people  who,  in  fact,  are 
qualified  to  perform  the  particular  tasks 
or  activities  at  issue,  either  with  or 
without  a  reasonable  accommodation.32 
Such  overinclusive  classifications  pre- 
clude or  prejudice  consideration  of  indi- 
vidual abilities.  As  a  State  appellate 
court  succinctly  declared  with  respect  to 
blindness,  "The  presumed  incapacity  of 
the  blind  is  a  profoundly  disabling  heri- 
tage, preventing  demonstration  of  ability 
in  fact."33  In  a  decision  regarding  a  State 
school's  treatment  of  institutionalized 
mentally  retarded  people,  a  Federal  dis- 
trict court  judge  recently  noted: 


Defendants  have  often  made  place- 
ments and  disbursed  services  based 
not  on  an  individual  assessment  of 
the  abilities  and  potentials  of  each 
resident  but  on  the  generalized  as- 
sumption that  certain  groups  of  peo- 
ple (e.g.,  profoundly  retarded  or  non- 
ambulatory people)  are  unable  to 
benefit  from  certain  activities  and 
services.  This  kind  of  blanket  dis- 
crimination against  the  handi- 
capped, and  especially  against  the 
most  severely  handicapped,  is  unfor- 
tunately firmly  rooted  in  the  history 
of  our  country.  .  .  .34 

assistants,  particularly  for  a  short-term  situa- 
tion, such  as  bringing  a  reader  or  interpreter  to 
take  a  test.  Such  measures  are  not  usually 
considered  to  be  accommodations  but  might 
become  accommodations  if  purchased  by  a  pro- 
gram and  used  only  for  program  activities  or 
tasks. 

33  Zorick  v.  Tynes,  372  So.2d  133,  135  (Fla.  App. 
1979). 

34  Garrity  v.  Galen,  522  F.  Supp.  171,  214 
(D.N.H.  1981).  See  also  Connecticut  Inst,  for  the 


98 


Selection  criteria — requirements  that 
purport  to  measure  physical  or  mental 
abilities  or  the  ability  to  perform  certain 
tasks  or  activities35  — may  also  unneces- 
sarily exclude  handicapped  people.  Such 
criteria  differ  from  stigmatizing  disabili- 
ty classifications  in  that  they  substitute 
measures  of  ability  for  labels  of  ability. 
Examples  of  selection  criteria  include 
weight-lifting  requirements  for  certain 
postal  jobs  and  specific  visual  acuity 
requirements  for  certain  teaching  jobs. 
Needless  discrimination  occurs  when  se- 
lection criteria  inaccurately  measure 
abilities,  accurately  measure  abilities 
but  inadequately  correlate  them  with 
activities,  or  fail  to  appreciate  available 
options  that  permit  participation  or  per- 
formance. 

Equal  Opportunity  and  Reasonable 
Accommodation 

Handicap  antidiscrimination  law 
must,  of  course,  acknowledge  functional 
impairments,  but  it  must  also  focus  on 
ways  in  which  society  can  reasonably 
adapt  to  a  wider  range  of  mental  and 
physical  differences  than  the  handi- 
capped-normal dichotomy  has  permitted. 

By  not  automatically  assuming  that 
people  with  certain  handicaps  are  unable 
to  participate  or  compete  and  by  treating 
them  identically  to  nonhandicapped  peo- 
ple, society  might  provide  a  limited  kind 
of  equal  opportunity.  Identical  treatment 
might  eliminate  some  of  the  prejudices 
and  misconceptions  about  handicapped 
people.  Such  identical  treatment,  how- 
Blind  v.  Connecticut  Comm'n  on  Human  Rights 
and  Opportunities,  176  Conn.  88,  405  A.2d  618, 
621  (1978). 

35  Some  selection  criteria  are  stated  negatively; 
they  check  for  physiological  "irregularities"  in 
the  belief  that  such  measurements  correlate  with 
ability. 


ever,  would  not  foster  the  provision  of 
alternative  ways  of  achieving  given  tasks 
or  objectives  so  that  handicapped  people 
could  have  meaningful  opportunities  to 
participate.  When  decisionmakers  forget 
that  social  contexts  almost  always  are 
structured  for  nonhandicapped  people, 
they  are  apt  to  view  anything  beyond 
such  identical  treatment  as  special,  une- 
qual treatment  necessitated  by  the  han- 
dicapping condition.  This  perspective 
views  handicapped  people  as  inherently 
limited.  Such  an  approach  would  give 
the  form,  but  not  the  substance,  of  equal 
opportunity. 

The  idea  that  identical  treatment  does 
not  always  result  in  real  equality  of 
opportunity  springs  from  traditional  doc- 
trines of  nondiscrimination  law.  In  a 
landmark  race  discrimination  employ- 
ment case,  the  U.S.  Supreme  Court  said: 

Congress  has  now  provided  that 
tests  or  criteria  for  employment  or 
promotion  may  not  provide  equality 
of  opportunity  merely  in  the  sense  of 
the  fabled  offer  of  milk  to  the  stork 
and  the  fox.  On  the  contrary, 
Congress  has  now  required  that  the 
posture  and  condition  of  the  job- 
seeker  be  taken  into  account.  It 
has — to  resort  again  to  the  fable — 
provided  that  the  vessel  in  which  the 
milk  is  proffered  be  one  all  seekers 
can  use.36 

Similarly,  in  Lau  v.  Nichols,37  the  Su- 
preme Court  ruled  that  the  failure  of  a 

36  Griggs  v.  Duke  Power  Co.,  401  U.S.  424,  431 
(1971). 

37  414  U.S.  563  (1974).  The  case  considered  the 
claim  of  approximately  1,800  non-English-speak- 
ing students  of  Chinese  ancestry  that  the  San 
Francisco,  California,  school  system  was  denying 


99 


school  system  to  provide  bilingual  educa- 
tion to  students  whose  primary  language 
was  not  English  constituted  unlawful 
discrimination  in  violation  of  Title  VI  of 
the  Civil  Rights  Act  of  1964.38 

[T]here  is  no  equality  of  treatment 
merely  by  providing  students  with 
the  same  facilities,  textbooks,  teach- 
ers, and  curriculum;  for  students 
who  do  not  understand  English  are 
effectively  foreclosed  from  any 
meaningful  education.  We  know 
that  those  who  do  not  understand 
English  are  certain  to  find  their 
classroom  experiences  wholly  incom- 
prehensible and  in  no  way  meaning- 
ful.39 


Courts  have  frequently  used  this  ratio- 
nale for  accommodation  with  respect  to 
equal  educational  opportunity  for  handi- 
capped children,  perhaps  because  uni- 
versal, compulsory  public  education  was 
one  of  our  Nation's  first  experiments 
with  the  full  participation  mandate.40 

Individualization 

Another  way  of  summarizing  the  or- 
ienting principles  this  chapter  presents 
is  to  say  that  handicapped  people  are 
unnecessarily  excluded  from  society  be- 
cause of  two  types  of  inaccurate  generali- 
zations: generalizations  about  functional 


them  equal  educational  opportunity  by  offering 
instruction  only  in  the  English  language. 

38  42  U.S.C.  §2000d  (1976).  Title  VI  prohibits 
discrimination  on  the  basis  of  race,  color,  and 
national  origin  by  recipients  of  Federal  financial 
assistance.  The  language  of  §504  closely  tracks 
the  language  of  Title  VI.  See  chap.  3  in  the 
section  entitled  "Rehabilitation  Act  of  1973." 

39  414  U.S.  at  566. 

40  See  New  Mexico  Ass'n  for  Retarded  Citizens  v. 
New  Mexico,  678  F.2d  847,  854  (10th  Cir.  1982); 
Gary  B.  v.  Cronin,  542  F.  Supp.  102  (N.D.I11. 
1982). 

100 


impairments  and  activity  restrictions 
and  generalizations  about  the  ability  of 
society  reasonably  to  adapt  to  mental 
and  physical  differences.  This  orienta- 
tion emphasizes  that  handicapped  people 
and  the  particular  social  setting  must  be 
assessed  with  greater  particularity  if 
such  generalizations  are  to  be  avoided. 
Individualization,  an  "individualized  as- 
sessment of  ability,"41  in  an  identified 
setting  is  the  only  effective  means  of 
dealing  with  overgeneralizations  about 
handicapped  people  to  achieve  meaning- 
ful equal  opportunity  and  full  participa- 
tion. 

The  principle  of  individualization  re- 
quires an  examination  of  both  the  true 
effect  of  functional  impairments  on  ac- 
tivities and  the  availability  of  alterna- 
tive methods  of  performing  tasks  or 
activities.  In  an  employment  case,  a 
Federal  court  has  declared: 


[T]he  real  focus  must  be  on  the 
individual  job  seeker,  and  not  solely 
on  the  impairment  or  perceived  im- 
pairment. This  necessitates  a  case- 
by-case  determination  of  whether 
the  impairment  or  perceived  impair- 
ment. .  .constitutes,  for  that  indi- 
vidual, a  substantial  handicap  to 
employment.42 

41  Garrity  v.  Gallen,  522  F.  Supp.  at  206. 

42  E.  E.  Black,  Ltd.  v.  Marshall,  497  F.  Supp. 
1088,  1100  (D.  Haw.  1980).  The  Supreme  Court  of 
Connecticut  has  declared:  "Blanket  exclusions, 
no  matter  how  well  motivated,  fly  in  the  face  of 
the  command  to  individuate  that  is  central  to  fair 
employment  practices."  Connecticut  Inst,  for  the 
Blind  v.  Connecticut  Comm'n  on  Human  Rights 
and  Opportunities,  176  Conn.  88,  405  A.2d  618, 
621  (1978). 


The  concern  is  individual  ability,  not 
the  presence  or  absence  of  a  label.  Indivi- 
dualization might  require  tailoring  of 
eligibility  and  program  requirements, 
facilities,  and  equipment  to  fit  the  needs 
of  particular  individuals.  Thus,  a  piece  of 
equipment  or  furniture  might  have  to  be 
altered  to  permit  a  particular  person  to 
use  it.  This  alternative  cannot  be  accom- 
plished on  a  generalized  or  universal 
basis.  A  case-by-case  review  assessing 
the  functional  abilities  of  a  specific  per- 
son is  required. 

Several  Federal  laws  have  adopted 
individualization  requirements.  Under 
the  Education  for  All  Handicapped  Chil- 
dren Act,43  for  example,  public  school 
systems  are  required  to  develop  a  written 
individualized  education  program  for 
each  handicapped  child  to  tailor  pro- 
grams for  the  child's  unique  needs.44 


20  U.S.C.  §§1401  et  seq.  (1976). 
20U.S.C.  §1401  (19)  (1976). 
29  U.S.C.  §721  (9)  (1976). 


Similarly,  the  Rehabilitation  Act  re- 
quires agencies  to  develop  an  "individu- 
alized written  rehabilitation  program"45 
for  each  handicapped  individual.  And 
federally  funded  developmental  disabili- 
ties programs  must  fashion  an  individu- 
alized, written  "habilitation  plan"  for 
each  developmentally  disabled  person 
receiving  services.46 

Understanding  how  the  spectrum  of 
physical  and  mental  differences  inter- 
acts with  the  social  context  and  how  this 
reality  is  distorted  by  the  handicapped- 
normal  dichotomy  provides,  in  turn,  an 
understanding  of  the  key  legal  concepts 
of  meaningful  equal  opportunity  and 
individualization.  It  is  around  these  con- 
cepts that  the  important  legal  standards 
of  reasonable  accommodation  have  been 
developed. 

46    42  U.S.C.  §601 1(a)  (1976).  Individualization  is 
discussed  further  in  chap.  6. 


101 


Chapter  6 

Legal  Standards  for  Reasonable  Accommodation 


Discrimination  against  handicapped 
people  cannot  be  eliminated  if  programs, 
activities,  and  tasks  are  always  struc- 
tured in  the  ways  people  with  "normal" 
physical  and  mental  abilities  customari- 
ly undertake  them.  Adjustments  or  mod- 
ifications of  opportunities  to  permit 
handicapped  people  to  participate  fully 
have  been  broadly  termed  "reasonable 
accommodation."  Doctrines  governing 
the  duty  to  provide  reasonable  accommo- 
dation are  still  in  a  formative  stage. 
Neither  judicial  decisions  nor  regula- 
tions interpreting  handicap  discrimina- 
tion laws  clearly  define  this  key  legal 
concept.  The  lack  of  an  accepted  opera- 
tional definition  has  caused  considerable 
confusion  both  as  to  what  reasonable 
accommodation  encompasses  and  what 
standards  govern  its  application  in  par- 
ticular contexts.  This  chapter  provides  a 
framework  for  resolving  such  issues. 

The  phrase  "reasonable  accommoda- 
tion" originated  in  employment  regula- 
tions issued  pursuant  to  section  504  of 
the  Rehabilitation  Act  of  1973.  "Accom- 
modation," however,  has  been  used  gen- 
erically  outside  the  employment  context 
to  describe  individualization  of  opportu- 
nities for  handicapped  people.  The  term 


also  has  encompassed  the  removal  of 
architectural,  transportation,  and  com- 
munication barriers  that  exclude  groups 
of  people  with  similar  functional  limita- 
tions. Examples  of  these  kinds  of  accom- 
modation include  building  ramps  for 
people  using  wheelchairs  and  captioning 
television  programs  for  those  with  hear- 
ing impairments. 

As  a  working  definition,  this  chapter 
uses  reasonable  accommodation  to  mean 
providing  or  modifying  devices,  services, 
or  facilities  or  changing  practices  or 
procedures  in  order  to  match  a  particu- 
lar person  with  a  particular  program  or 
activity.  Individualizing  opportunities  is 
this  definition's  essence. 

Under  this  definition,  the  removal  of 
architectural,  transportation,  or  commu- 
nication barriers  to  groups  of  handi- 
capped people  is  not  reasonable  accom- 
modation. Although  removing  environ- 
mental barriers  responds  to  the  spec- 
trum of  individual  abilities,  it  does  not 
focus  on  an  assessment  of  the  particular 
abilities  of  any  one  person.  Frequently, 
the  removal  of  such  barriers  is  a  precon- 
dition to  individualization,  since  there 
can  be  no  adequate  assessment  of  the 
individual  abilities  of  handicapped  peo- 


102 


pie  who  cannot  even  reach  or  enter  the 
front  door.  But  removing  barriers  tends 
to  be  a  long-term  change  that  presents 
considerations  of  costs,  planning,  and 
implementation  different  from  those  for 
individualized  accommodation.  More- 
over, barrier  removal  does  not  depend  on 
the  presence  of  any  specific  individual;  it 
can  be  required  and  accomplished  before 
any  handicapped  individual  appears  on 
the  scene  or  requests  compliance.  Of 
course,  even  though  not  within  our  defi- 
nition of  reasonable  accommodation, 
modifications  removing  environmental 
barriers  are  required  by  various  Federal 
handicap  discrimination  laws. 

The  definition  of  reasonable  accommo- 
dation used  in  this  chapter  also  does  not 
cover  the  elimination  of  illegal  exclu- 
sionary classifications.  Like  architectur- 
al, transpor-  tation,  and  communication 
barriers,  rules  and  standards  that  use 
traditional  disability  labels  or  other  arbi- 
trary selection  criteria  exclude  whole 
groups  of  handicapped  people.  To  elimi- 
nate classifications  inadequately  related 
to  the  program  or  task  in  question  re- 
quires no  assessment  of  the  functional 
abilities  or  needs  of  any  particular  hand- 
icapped individual.  Unlike  reasonable 
accommodation  and  the  removal  of  envi- 
ronmental barriers,  both  of  which  re- 
quire modifications,  a  simple  decision  to 
stop  using  it  is  generally  all  that  is 
required  to  eliminate  an  illegal  exclu- 
sionary classification. 

In  addition  to  definitional  problems, 
reasonable  accommodation  law  has  de- 
veloped different  standards  in  different 
societal  areas.  For  example,  Federal 
equal  educational  opportunity  rights,  as 
chapter  3  explains,  require  public  ele- 
mentary and  secondary  education  sys- 


tems to  tailor  their  programs  to  the 
needs  of  each  handicapped  child.  With 
respect  to  employment,  however,  because 
the  right  to  equal  employment  opportu- 
nity is  not  the  same  as  the  right  to  a  job, 
individual  tailoring  requirements  are 
more  limited. 

Similarly,  reasonable  accommodation 
law  assigns  different  legal  consequences 
to  the  costs  of  accommodation  in  differ- 
ent societal  areas.  In  elementary  and 
secondary  education,  the  law  is  clear 
that  handicapped  children  are  entitled  to 
an  individualized  education  program. 
Cost  may  be  a  factor  in  choosing  among 
different  ways  of  providing  meaningful 
educational  opportunity  in  the  least  re- 
strictive setting,  but  it  cannot  defeat  the 
right  itself.  In  employment,  however, 
high  costs  may  be  a  defense  to  providing 
a  specific  accommodation,  although  not 
to  considering  handicapped  people  on  an 
individual  basis.  Apart  from  reasonable 
accommodation  requirements,  the  role  of 
cost  considerations  in  the  legal  require- 
ment that  mass  transit  systems  be  acces- 
sible has  been  controversial.  Cost  may 
excuse  the  lack  of  total  accessibility,  but 
it  does  not  preclude  choosing  among 
various  alternatives  for  providing  mean- 
ingful forms  of  access  to  public  transpor- 
tation. 

Several  components  of  the  legal  duty 
of  reasonable  accommodation  are 
straightforward  and  well  established. 
But  because  of  individualization  require- 
ments and  the  resulting  ad  hoc  nature  of 
reasonable  accommodation  decisions, 
regulators  and  courts  have  struggled  to 
find  principles  for  deciding  when,  in 
what  ways,  and  to  what  extent  the  many 
institutions,  programs,  activities,  and 
tasks  covered  by  handicap  discrimina- 


103 


tion  laws  must  accommodate  the  infinite 
gradations  of  human  abilities.  An  exten- 
sive review  of  existing  regulations,  case 
law,  and  legal  literature  suggests  that 
this  extremely  diverse  factual  reality 
makes  simple,  universal  rules  impossi- 
ble. 

Because  of  the  number,  complexity, 
and  interplay  of  the  variables  involved  in 
reasonable  accommodation,  this  chapter 
can  only  summarize  those  principles  that 
have  emerged  and  provide  a  framework, 
with  examples,  for  understanding  and 
applying  the  doctrine.  The  chapter  con- 
cludes that  reasonable  accommodation  is 
not  a  set  of  hard  and  fast  rules,  but  a 
process. 

The  chapter  first  details  the  general 
meaning  of  reasonable  accommodation, 
traces  its  origins,  provides  concrete  ex- 
amples of  reasonable  accommodations, 
and  discusses  the  necessity  and  impor- 
tance of  the  reasonable  accommodation 
concept  to  handicap  law.  Next,  the  chap- 
ter examines  the  reasoning  and  implica- 
tions of  the  U.S.  Supreme  Court's  only 
decision  to  date  on  this  issue.  The  chap- 
ter then  discusses  the  legal  standards 
governing  the  application  of  reasonable 
accommodation,    including   who    is    an 


1  The  phrase  "reasonable  accommodation"  oc- 
curs in  Title  VII  of  the  Civil  Rights  Act  of  1964, 
42  U.S.C.  §2000e(j)  (1976),  defining  the  obligation 
of  employers  to  accommodate  the  needs  arising 
from  religious  practices,  unless  to  do  so  would 
impose  an  "undue  hardship."  In  Trans  World 
Airlines  v.  Hardison,  432  U.S.  63  (1977),  the  U.S. 
Supreme  Court  held  that  an  employer  need  not 
make  such  an  accommodation  if  it  would  require 
"more  than  a  de  minimis  cost."  Id.  at  84.  These 
principles  do  not  apply  in  the  context  of  discrimi- 
nation on  the  basis  of  handicap.  Prewitt  v. 
United  States  Postal  Service,  662  F.2d  292,  308  n. 
22  (5th  Cir.  1981).  The  Court's  restrictive  ruling 
was  motivated  in  part  by  a  desire  to  avoid  first 
amendment  problems  concerning  the  Constitu- 
tion's protection  of  the  free  excercise  of  religion 


"otherwise  qualified  handicapped  indi- 
vidual," how  individualized  accommoda- 
tions are  made,  and  what  the  limits  are 
on  the  requirement  to  accommodate. 
Finally,  the  chapter  explains  two  areas 
of  handicap  law  that  are  prerequisites  to 
reasonable  accommodation:  the  law  gov- 
erning blanket  exclusions,  selection  cri- 
teria, and  other  discriminatory  mecha- 
nisms that  preempt  the  question  of 
whether  an  accommodation  is  needed; 
and  the  law  governing  the  removal  of 
architectural,  transportation,  and  com- 
munication barriers. 

What  Is  Reasonable 
Accommodation? 

The  legal  term  of  art  "reasonable 
accommodation"  was  first  used  with  re- 
spect to  handicap  discrimination  in  19771 

in  the  U.S.  Department  of  Health, 
Education,  and  Welfare's  (HEW)  regula- 
tions to  implement  section  504  of  the 
Rehabilitation  Act  of  1973.  The  scope  of 
the  regulations  was  wide,2  but  the 
phrase  reasonable  accommodation  ap- 
plied only  to  employment  practices3  and 
was  defined  only  by  examples: 

and  its  prohibition  against  establishing  a  reli- 
gion. See  Trans  World  Airlines  v.  Hardison,  432 
U.S.  63,  81;  see  also  Note,  "Anderson  v.  General 
Dynamics  Convair  Aerospace  Division:  First 
Amendment  Establishment  Clause  Challenge  to 
Title  VII's  Mandated  Accommodation  of  Reli- 
gion," Nw.  U.L.  Rev.,  vol.  76  (1981),  p.  487. 

2  The  1977  regulations,  which  are  still  in  effect, 
cover  employment;  program  accessibility  (archi- 
tectural barriers);  preschool,  elementary,  and 
secondary  education;  postsecondary  education; 
and  health,  welfare,  and  social  services.  See  the 
current  version  of  the  regulations,  now  issued  by 
the  Department  of  Health  and  Human  Services, 
45  C.F.R.  pt.  84  (1982). 

3  45  C.F.R.  §84.12(1982). 


104 


Reasonable  accommodation  may  in- 
clude: (1)  making  facilities  used  by 
employees  readily  accessible  to  and 
useable  by  handicapped  persons,  and 
(2)  job  restructuring,  part-time  or 
modified  work  schedules,  acquisition 
or  modification  of  equipment  or  de- 
vices, the  provision  of  readers  or 
interpreters,  and  other  similar  ac- 
tions.4 

The  U.S.  Department  of  Labor  also 
used  the  phrase  reasonable  accommoda- 
tion in  its  regulations  implementing  sec- 
tion 503  of  the  Rehabilitation  Act.  In 
that  context,  reasonable  accommodation 
is  part  of  the  obligation  of  Federal  con- 
tractors to  refrain  from  discrimination 
and  to  take  affirmative  action  to  employ 
and  promote  qualified  handicapped  peo- 
ple. The  regulations  specify  that  contrac- 
tors "must  make  a  reasonable  accommo- 
dation to  the  physical  and  mental  limita- 
tions of  an  employee  or  applicant.  .  .  ."5 
Regulations  promulgated  by  the  Equal 
Employment  Opportunity  Commission 
(EEOC)  to  implement  section  501  pro- 
tecting Federal  employees  and  appli- 
cants also  use  reasonable  accommoda- 
tion in  the  same  way  the  phrase  was 
used  in  the  HEW  regulations.6 

These  regulations  soon  were  supported 
by  Congress.  Section  505  of  the  Rehabili- 

'*   Id.  §84. 12(b)  (1982). 

s  41  C.F.R.  §60.741. 6(d)  (1982).  The  regulations 
use  the  term  reasonable  accommodation  to  en- 
compass such  workplace  modifications  as  "in- 
cluding special  equipment,  changes  in  the  physi- 
cal layout  of  the  job,  elimination  of  certain  duties 
relating  to  the  job,  or  other  accommodations." 
See  chap.  3  in  the  section  entitled  "Rehabilita- 
tion Act  of  1973." 

8    29  C.F.R.  §1613.704  (1982).  See  chap.  3  in  the 
section  entitled  "Rehabilitation  Act  of  1973." 
7    29  U.S.C.  §794a(a)(l)  (Supp.  V  1981).  Issues  of 


tation  Act,  passed  a  year  after  the  rea- 
sonable accommodation  regulations 
went  into  effect,  permits  courts  to  consid- 
er "the  reasonableness  of  the  cost  of  any 
necessary  work  place  accommodation 
and  the  availability  of  any  alternatives 
therefor  or  other  appropriate  relief  in 
order  to  achieve  an  equitable  and  appro- 
priate remedy."7  In  its  original  sense, 
then,  reasonable  accommodation  re- 
ferred only  to  modifications  on  the  job 
that  took  into  account  the  disabilities  of 
individual  handicapped  employees  and 
applicants  in  order  to  increase  their 
opportunities. 

Handicap  discrimination  law  also  uses 
other  phrases  to  convey  the  concepts 
that  reasonable  accommodation  embod- 
ies. One  of  the  most  litigated  of  these  is 
the  meaning  of  the  "related  services" 
requirement  in  the  Education  for  All 
Handicapped  Children  Act  (EAHCA).8 
To  provide  "free  appropriate  public  edu- 
cation,"9 school  systems  receiving  EAH- 
CA funds  are  required  to  provide  "spe- 
cial education  and  related  services,"10 
defined  as  including: 


transportation,  and  such  develop- 
mental, corrective  and  other  sup- 
portive services  (including  speech 
pathology  and  audiology,  psychologi- 
cal  services,   physical   and   occupa- 

undue  hardship,  including  excessive  costs,  that 
may  arise  from  such  efforts  are  generally  consid- 
ered limitations  on  the  duty  to  accommodate  and 
are  discussed  in  this  chapter  in  the  section 
entitled  "Limitations  Upon  the  Obligation  to 
Accommodate." 

8  For  a  description  of  the  Education  of  All 
Handicapped  Children  Act,  see  chap.  3  in  the 
section  entitled  "Education  for  All  Handicapped 
Children  Act." 

9  20  U.S.C.  §1412(1)  (1976). 

10  Id.  §1401(17)  (1976). 


105 


tional  therapy,  recreation,  and  medi- 
cal and  counselling  services,  except 
that  such  medical  services  shall  be 
for  diagnostic  and  evaluation  pur- 
poses only)  as  may  be  required  to 
assist  a  handicapped  child  to  benefit 
from  special  education,  and  includes 
the  early  identification  and  assess- 
ment of  handicapping  conditions  in 
children.11 

Courts  have  frequently  ordered,  under 
section  504,  related  services  that  parents 
of  handicapped  children  have  requested 
both  alone12  and  in  conjunction  with  the 
EAHCA.13 

Similarly,  section  504  education  regu- 
lations require  postsecondary  institu- 
tions receiving  Federal  financial  assis- 
tance to  make  "academic  adjustments"14 
to  the  needs  of  handicapped  students. 
Provision  of  individualized  habilitation 
services  to  developmentally  disabled  peo- 
ple under  the  Developmental  Disabilities 
Assistance  and  Bill  of  Rights  Act15  and 
to  handicapped  people  under  the  Reha- 
bilitation Act16  are  also  directly  related 
to  reasonable  accommodation.  The  term 
reasonable  accommodation  has  been 
used  as  well  by  courts  and  commentators 
in  the  context  of  removing  architectural 


11  20  U.S.C.  §1401(17)  (1976).  The  term  also 
includes  school  health  services,  social  work  ser- 
vices in  schools,  and  parent  counseling  and 
training. 

12  New  Mexico  Ass'n  for  Retarded  Citizens  v. 
New  Mexico,  678  F.2d  847,  852-55  (10th  Cir. 
1982). 

13  See  cases  cited  in  chap.  3  in  the  section 
entitled  "Education  for  All  Handicapped  Chil- 
dren Act.". 

14  34  C.F.R.  §104.44  (1982). 

15  42  U.S.C.  §6000-6012  (1976  and  Supp.  V  1981). 
See  chap.  3  in  the  section  entitled  "Developmen- 
tal Disabilities  Assistance  and  Bill  of  Rights 
Act." 


barriers,17  modifying  designs  and  opera- 
tions to  make  mass  transit  systems  ac- 
cessible to  handicapped  people,18  and 
captioning  television  programs  for  peo- 
ple with  hearing  impairments.19 

The  case  law  analyzing  handicap  dis- 
crimination laws  and  regulations,  which 
the  remainder  of  this  chapter  discusses, 
clearly  requires  some  kinds  of  accommo- 
dation, although  it  employs  no  clear 
definition  of  reasonable  accommodation. 
By  accommodation,  this  body  of  law 
appears  to  mean  any  modification,  aid, 
device,  or  service  that  addresses  the 
abilities  of  handicapped  individuals  in 
order  to  permit  participation  in  a  partic- 
ular opportunity.  In  what  contexts,  for 
whom,  in  what  ways,  and  to  what  extent 
such  accommodations  must  be  made, 
however,  is  not  completely  resolved. 

As  the  preceding  chapter  explained, 
there  are  many  equally  effective  ways  of 
performing  tasks  and  accomplishing  ob- 
jectives. Some  recent  studies  of  Federal 
contractors  subject  to  section  503  indi- 
cate that  accommodations  are  frequently 
minor  and  inexpensive.20  A  1980  Ameri- 


16  29  U.S.C.  §701-796  (1976  and  Supp.  V  1981). 

17  E.g.,  Charles  D.  Goldman,  "Architectural 
Barriers:  A  Perspective  On  Progress,"  to  be 
published  in  W.  New  Eng.  L.  Rev.,  vol.  5,  no.  3 
(Winter  1983),  pp.  19,  22  of  manuscript  (hereafter 
cited  as  "Architectural  Barriers"). 

18  Dopico  v.  Goldschmidt,  687  F.2d  644,  650  (2d 
Cir.  1982);  Rhode  Island  Handicapped  Action 
Comm.  v.  Rhode  Island  Pub.  Transit  Auth.,  549  F. 
Supp.  592,  607  (D.R.I.  1982). 

19  Southern  Cal.  Community  Television  v.  Gott- 
fried, 103  S.Ct.  885,  891  (1983). 

20  The  benefits  of  accommodation  in  comparison 
with  their  costs  are  discussed  in  chap.  7. 


106 


can  Management  Association  research 
study21  reported  the  following  examples 
of  simple  and  creative  accommodations: 

— Assigning  handicapped  employees 
to  areas  that  are  already  accessible 
instead  of  altering  other  areas; 

— Replacing  knobs  on  a  microfilm 
viewer  with  levers  so  that  a  cerebral 
palsied  employee  can  have  access  to 
source  documents. 


— Using  rubber  stamps  instead  of 
conventional  templates,  so  that  a 
computer  programmer  with  severe 
spasticity  can  draw  logic  charts; 

— Modifying  tape  recorder  keys  so 
that  workers  with  minimal  hand 
function  can  use  the  recorder  as  a 
notebook; 

— Using  a  plastic  overlay  with  out- 
lines and  windows  to  help  a  visually 
impaired  employee  read  data  entry 
forms; 

— Providing  protractors,  compasses 
and  other  equipment  that  is  marked 


in  braille,  or  providing  talking  calcu- 
lators; 


21  Jack  R.  Ellner  and  Henry  E.  Bender,  Hiring 
The  Handicapped  (New  York:  AMACOM,  1980). 

22  Ibid.,  pp.  51-52. 

23  Ibid.,  p.  48.  One  company  saved  alteration 
expenses  by  installing  a  paper  cup  dispenser 
rather  than  lowering  a  water  fountain.  Ibid.,  p. 
51. 

24  Berkeley  Planning  Associates,  A  Study  of 
Accommodations  Provided  to  Handicapped  Em- 
ployees By  Federal  Contractors:  Final  Report 
(prepared  under  a  U.S.  Dept.  of  Labor,  Employ- 
ment Standards  Administration,  contract)  (June 
1982),  vol.  1  (hereafter  cited  as  Accommodation 
Study). 


— Modifying  work  schedules 


22 


Further  evidence  of  the  ease  and  low 
cost  of  most  accommodations23  appears 
in  a  1982  United  States  Department  of 
Labor  study  of  accommodations  provided 
for  handicapped  workers  by  Federal  con- 
tractors under  section  503  of  the  Rehabil- 
itation Act.24  The  study  estimated  that 
handicapped  employees  were  3.5  percent 
of  the  overall  work  force  of  the  contrac- 
tors surveyed.25  Of  these  handicapped 
workers,  only  22  percent  received  some 
form  of  accommodation,26  and  these 
accommodations  were  generally  inex- 
pensive. Half  of  the  accommodations  cost 
nothing,  and  more  than  two-thirds  cost 
less  than  $100. 27  Of  the  accommodations 
made,  only  about  9  percent  involved 
modifying  office  equipment,  such  as  tele- 
phones or  typewriters,  or  providing  dic- 
taphones, audiovisual  aids,  or  other  spe- 
cial devices.28  Employers  generally  re- 
ported the  accommodations  as  successful 
because  they  allowed  handicapped  work- 
ers to  be  more  productive  in  their  jobs.29 

Postsecondary  institutions  have  also 
been  able  to  adjust  programs  and  prac- 

25  Ibid.,  p.  ii. 

26  Ibid.,  p.  20.  Because  the  remaining  78  percent 
of  handicapped  workers  surveyed  were  employed, 
it  can  be  assumed  that  their  present  positions  did 
not  require  accommodations. 

27  Ibid.,  p.  29.  As  the  authors  of  the  study  note,  it 
may  be  that  this  indicates  that  employers  will 
only  hire  those  handicapped  workers  for  whom 
accommodation  is  unnecessary  or  inexpensive. 
Ibid.,  p.  28. 

28  Ibid.,  p.  23. 

29  Ibid.,  p.  ii. 


107 


tices,  frequently  with  greater  ingenuity 
than  expense,  to  permit  handicapped 
students  meaningful  opportunities  for 
education  after  high  school.  A  junior 
college  in  Minnesota  altered  its  physical 
and  occupational  therapy  assistant  pro- 
gram to  teach  visually  impaired  people. 
Text  material  was  recorded  on  audiocas- 
settes,  anatomical  models  were  labeled 
in  braille,  and  examinations  and  testing 
procedures  were  revised  to  better  reflect 
student  achievement  better.30  A  commu- 
nity college  in  Kansas  developed  for  deaf 
students  a  series  of  technical  sign  lan- 
guage books  providing  hand  signs  for 
technical  vocabulary  to  permit  students 
to  work  in  technical  fields.31  Gallaudet 
College,  established  to  educate  deaf  stu- 
dents, has  employed  a  variety  of  simple 
devices  to  promote  independent  living 
for  its  students: 


[The  College]  installed  telephones 
for  the  deaf  (TDD's)  beside  all  pay 
phones  in  college  dormito- 
ries. .  .  .All  campus  offices  are 
equipped  with  telephones  which 
flash  a  light  in  addition  to  ringing. 
Dormitories  are  equipped  with  flash- 
ing doorbell  light  signals  and  strobe 
lights  for  fire  alarms.  Persons 
knocking  on  any  dormitory  door  can 
also  blink  the  inside  ceiling  light 
with  an  outside  switch.  Students 
who  are  both  blind  and  deaf  greet 


30  S.G.  Tickton,  W.A.  Kinder,  and  A.S.  Foley, 
Educational  Opportunities  For  Handicapped  Stu- 
dents: 1981  Idea  Handbook  for  Colleges  and 
Universities  (Washington,  D.C.:  Academy  for  Ed- 
ucational Development,  1981),  p.  21  (hereafter 
cited  as  1981  Idea  Handbook). 

31  Ibid.,  p.  22. 

32  Ibid.,  p.  37. 

33  442  U.S.  397  (1979). 

34  See  also  University  of  Tex.  v.  Camenisch,  451 


visitors  when  they  feel  a  soft  breeze 
created  by  a  fan  attached  to  the 
doorbell  light  switch.32 

Of  course  not  all  changes  made  by 
programs  are  going  to  be  inexpensive 
and  easy.  These  examples  only  suggest 
the  variety  of  tasks,  methods,  and  situa- 
tions the  concept  of  accommodation  cov- 
ers and  the  many  different  ways  of 
accomplishing  desirable  social  objectives. 
The  necessity  for  reasonable  accommo- 
dation rests  finally  on  the  need  to  consid- 
er people's  actual  abilities  and  match 
them  with  actual  program  requirements 
to  provide  meaningful  opportunities. 

Southeastern  Community 
College  v.  Davis:  Reasonable 
Accommodation  as  Part  of 
Nondiscrimination  Law 

Analyzing  the  nature  and  extent  of  the 
duty  to  accommodate  must  begin  with 
Southeastern  Community  College  v. 
Davis,33  the  Supreme  Court's  only  exten- 
sive opinion  on  the  issue.34  Davis  pro- 
vides some  initial  definitions  for  many  of 
section  504's  key  terms  and  concepts — 
"otherwise  qualified  handicapped  indi- 
vidual," "nondiscrimination,"  and  "ac- 
commodation"— and  shows  how  they  in- 
terrelate with  individualizing  opportuni- 
ties in  a  particular  factual  setting. 

Davis,  a  hearing-impaired35  licensed 
practical    nurse,    sought   admission    to 

U.S.  390  (1981);  Pennhurst  State  School  and 
Hosp.  v.  Halderman,  451  U.S.  1, 17  (1981). 
35  With  an  appropriate  hearing  aid,  Davis: 
"would  be  able  to  detect  sounds  'almost  as  well  as 
a  person  would  who  has  normal  hearing.'.  .  .But 
this  improvement  would  not  mean  that  she  could 
discriminate  among  sounds  sufficiently  to  under- 
stand normal  spoken  speech.  Her  lipreading 
skills  would  remain  necessary  for  efective  com- 
munication. .  .  ."  442  U.S.  at  401. 


108 


Southeastern  Community  College's  asso- 
ciate degree  nursing  program  to  fulfill 
eligibility  requirements  for  State  certifi- 
cation as  a  registered  nurse.  Southeast- 
ern rejected  her  because  of  her  hearing 
impairment.36  The  college  contended 
that  Davis  could  not  safely  practice  her 
chosen  profession  or  safely  participate  in 
the  school's  clinical  nursing  program 
without  extensive  modification  of  the 
program.37  Davis  contended  that  South- 
eastern's  insistence  on  functional  ability 
to  hear  as  an  entrance  requirement  and 
its  refusal  to  eliminate  clinical  training 
as  a  requirement  or  to  provide  individu- 
alized assistance  by  faculty  members 
constituted  unlawful  discrimination  in 
violation  of  section  504. 

Ruling  against  Davis,  the  Supreme 
Court  concluded  that  Southeastern  could 
impose  necessary  or  essential  physical 
requirements  for  its  nursing  program. 

36  Id.  at  400-01. 

37  Id.  at  401-03. 

38  Id.  at  407. 

39  The  Court  held  that  this  statutory  language 
required  a  person  to  be  "able  to  meet  all  of  a 
program's  requirements  in  spite  of  his  [or  her] 
handicap."  Id.  at  406.  The  Court  elaborated: 

Section  504,  by  its  terms  does  not  compel 
educational  institutions  to  disregard  the  dis- 
abilities of  handicapped  persons.  ...  In- 
stead, it  requires  only  that  an  "otherwise 
qualified  handicapped  individual"  not  be 
excluded  from  participation  in  a  federally 
funded  program  "solely  by  reason  of  his 
handicap,"  indicating  only  that  mere  posses- 
sion of  a  handicap  is  not  a  permissible 
ground  for  assuming  an  inability  to  function 
in  a  particular  context. 


Id.  at  405.  The  Court  further  noted  that  its 
interpretation  of  the  meaning  of  "otherwise 
qualified"  was  reinforced  by  then  HEW  (now 
HHS)  regulations  implementing  section  504  that 
defined  "qualified  handicapped  person":  "[w]ith 
respect  to  postsecondary  and  vocational  educa- 
tion services,   [as]   a  handicapped   person  who 


The  Court  determined  that  Davis  could 
not  safely  participate  in  the  existing 
clinical  nursing  program  or  in  many 
nursing  positions38  and  was  therefore 
not  an  "otherwise  qualified  handicapped 
individual"  within  the  meaning  of  sec- 
tion 504.39 

Although  the  higher  education  and 
professional  context  of  Southeastern 
Community  College  v.  Davis40  limited 
consideration  of  many  reasonable  accom- 
modation issues  and  their  interrelation- 
ships, the  case  makes  two  major  contri- 
butions. First,  the  Court's  analysis  made 
reasonable  accommodation  a  part  of  non- 
discrimination law.  The  Court  noted  that 
section  504  compels  covered  institutions 
to  take  some  actions  to  remove  some 
restrictions  to  participation  by  handi- 
capped people.  The  Court  acknowledged 
that  some  requirements  and  practices, 

meets  the  academic  and  technical  standards 
requisite  to  admissions  or  participation  in  the 
[school's]  education  program  or  activity.  .  .  ." 
Id.  at  406,  quoting  45  C.F.R.  §84.3(k)(3)  (1978).  An 
accompanying  HEW  analysis  noted,  as  did  the 
Court,  that  "legitimate  physical  qualifications 
may  be  essential  to  participation  in  particular 
programs."  Id.  at  407  &  n.  7,  citing  45  C.F.R.  pt. 
84,  app.  A,  p.  405  (1978). 

40  In  areas  other  than  higher  education,  such  as 
elementary  and  secondary  education,  where 
there  is  an  established  right  to  participate,  the 
Davis  analysis  must  be  adapted  to  the  demands 
of  the  particular  context.  The  section  in  this 
chapter  entitled  "Defining  Qualified  Handi- 
capped Individuals"  discusses  how  the  definition 
of  "otherwise  qualified  handicapped  individual" 
applies  in  different  contexts;  the  section  entitled 
"Individualizing  Opportunities"  discusses  how 
the  concept  of  reasonable  accommodation  is 
applied  in  different  contexts;  and  the  section 
entitled  "Limitations  Upon  the  Obligation  to 
Accommodate"  discusses  the  importance  of  view- 
ing the  limitations  on  the  duty  to  accommodate 
that  Davis  recognizes  within  the  particular  factu- 
al setting  in  which  the  duty  to  accommodate 
arises. 


109 


particularly  those  based  on  physical  re- 
quirements,41 may  illegally  exclude 
handicapped  people  unless  they  are  "leg- 
itimate,"42 "necessary,"43  and  "essen- 
tial,"44 and  not  "arbitrary"45  or  "unrea- 
sonable."46 The  Court  concluded: 


It  is  possible  to  envision  situations 
where  an  insistence  on  continuing 
past  requirements  and  practices 
might  arbitrarily  deprive  genuinely 
qualified  handicapped  persons  of  the 
opportunity  to  participate  in  a  cov- 
ered program  .  .  .Thus,  situations 
may  arise  where  a  refusal  to  modify 
an  existing  program  might  become 


unreasonable,  and  discriminatory47 
(emphasis  added). 

In  placing  reasonable  accommodation 
within  nondiscrimination  law,  the  Court 
also  sought  to  distinguish  nondiscrimina- 
tion and  accommodation  from  affirma- 
tive action.48  The  difficulties  the  Court 
encountered  in  reconciling  handicap  an- 
tidiscrimination principles  with  estab- 
lished civil  rights  understanding  of  affir- 
mative action  are  discussed  in  chapter  7. 
Regardless  of  some  conflicting  language 
concerning  accommodation  and  affirma- 
tive action  in  its  opinion,49  the  Court's 
analysis  places  the  duty  to  make  reason- 


41  The  Court  uses  the  phrase,  "physical  require- 
ments," in  two  different  senses.  In  one  context, 
physical  requirement  refers  to  selection  criteria 
that  correlate  with  a  necessary  skill  or  ability 
used  in  performing  a  task.  In  the  other  sense,  the 
Court  refers  to  the  necessary  skill  or  ability 
itself,  rather  than  its  correlated  proxy.  Because 
the  ability  to  understand  spoken  speech  without 
lipreading  was  both  a  selection  criterion  and  an 
actual  necessary  ability,  the  two  concepts  could 
be  merged  in  this  case.  In  other  contexts,  how- 
ever, selection  criteria  and  actual  required  abili- 
ties may  diverge.  It  is  sometimes  necessary  to 
distinguish  the  issue  of  who  is  qualified,  i.e.,  who 
can  actually  perform  the  identified  necessary 
tasks,  from  whether  selection  criteria  actually 
reflect  those  tasks.  See  the  sections  entitled 
"Defining  Qualified  Handicapped  Individuals" 
and  "Exclusionary  Classification,"  below. 

42  442  U.S.  at  407,  413  n.  12;  Simon  v.  St.  Louis 
County,  656  F.2d  316,  320-21  (8th  Cir.  1981),  cert, 
denied,  455  U.S.  976  (1981). 

43  442  U.S.  at  407;  Simon  v.  St.  Louis  County,  656 
F.2d  316,  320-21  (8th  Cir.  1981),  cert,  denied,  455 
U.S.  976  (1981). 

44  442  U.S.  at  406,  citing  HEW  regulatory 
interpretation,  45  C.F.R.  pt.  84,  app.  p.  405;  442 
U.S.  at  407. 

45  442  U.S.  at  412. 

46  Id.  at  413. 

47  Id.  at  412-13. 


48  Id.  at  410-11.  The  Court  referred  to  the 
congressional  recognition  of  the  distinction  be- 
tween "the  evenhanded  treatment  of  qualified 
handicapped  persons  and  affirmative  efforts  to 
overcome  the  disabilities  caused  by  handi- 
caps. .  .  .[NJeither  the  language,  purpose,  nor 
history  of  section  504  reveals  an  intent  to  impose 
an  affirmative  action  obligation  on  recipients  of 
federal  funds."  The  Court  cited  sections  501(a) 
and  503  of  the  Rehabilitation  Act,  which  specifi- 
cally require  affirmative  action  to  hire  and 
advance  qualified  handicapped  persons,  in  con- 
trast to  501(c),  which  encourages  but  does  not 
require  State  agencies  to  do  the  same.  Southeast- 
ern Community  College  was  a  State  institution. 
Id.  at  400.  The  Court  may  have  been  analogizing 
affirmative  efforts  to  increase  the  number  of 
minority  employees  to  overcome  past  discrimina- 
tion with  outreach  that  postsecondary  institu- 
tions might  make  to  increase  enrollment  of 
handicapped  students. 

49  Compare  id.  at  410  with  id.  at  412;  see  chap.  7 
in  the  subsection  entitled  "Affirmative  Action 
and  Nondiscrimination." 


110 


able  accommodations  within  the  scope  of 
nondiscrimination  law.50 

Second,  the  Court  analyzed  reasonable 
accommodation  as  the  means  for  match- 
ing people  with  varying  abilities  to  pro- 
grams with  varying  requirements.  The 
Davis  opinion  suggests  a  view  of  accom- 
modation as  a  process  of  individualizing 
opportunities  where  possible  and  reason- 
able in  light  of  all  the  circumstances. 
This  view,  of  course,  is  explained  in  the 
particular  context  of  higher  education. 
Nonetheless,  the  Court's  methodology  is 


50  Expressions  of  the  Court's  distinction  between 
affirmative  action  and  nondiscrimination  under 
section  504  occur  in  dicta  in  other  cases.  In 
University  of  Tex.  v.  Camenisch,  a  deaf  graduate 
student  had  succeeded  in  obtaining  a  preliminary 
injunction  to  compel  the  university  to  find  and 
pay  for  an  interpreter.  616  F.2d  127  (5th  Cir. 
1980),  vacated  as  moot,  451  U.S.  390  (1981).  When 
the  case  reached  the  Supreme  Court,  Camenisch 
had  already  received  his  degree,  so  the  Court 
ruled  the  preliminary  injunction  issue  moot.  Id. 
at  391-98.  In  a  short  concurring  statement,  the 
Chief  Justice  agreed  that  the  Court's  opinion  did 
not  constitute  a  ruling  on  the  merits:  "The  trial 
court  must,  among  other  things,  decide  whether 
the  Federal  regulations  at  issue,  which  go  beyond 
the  carefully  worded  nondiscrimination  provi- 
sion of  Section  504  exceed  the  powers  of  the 
Secretary  under  Section  504.  The  Secretary  has 
no  authority  to  rewrite  the  statutory  scheme  by 
means  of  regulations."  Id.  at  399  (Burger,  C.J., 
concurring)  (emphasis  in  original).  The  Chief 
Justice  cited  to  Southeastern  Community  College 
v.  Davis  and  Pennhurst  State  School  and  Hosp.  v. 
Halderman,  451  U.S.  1,  17  (1981)  ("[I]f  Congress 
intends  to  impose  a  condition  on  the  grant  of 
federal  moneys,  it  must  do  so  unambiguously."). 
In  dicta  in  Pennhurst,  the  Court  characterized  its 
ruling  in  Davis  as  follows:  "The  Court  below 
failed  to  recognize  the  well-settled  distinction 
between  Congressional  'encouragement'  of  state 
programs  and  the  imposition  of  binding  obliga- 
tions on  the  States.  .  .  .Relying  on  that  distinc- 
tion, this  Court  in  Southeastern  Community 
College  v.  Davis.  .  .rejected  a  claim  that  Section 
504.  .  .obligates  schools  to  take  affirmative  steps 
to  eliminate  problems  raised  by  an  applicant's 
hearing  disability.  Finding  that  state  agencies 


instructive.  The  Court  analyzed  the  na- 
ture and  requirements  of  the  program, 
Davis'  physical  and  mental  abilities  as 
they  related  to  that  program,  and  wheth- 
er there  was  any  legally  required  accom- 
modation that  might  permit  her  safe 
participation  in  the  program. 

The  underlying  purpose  of  Southeast- 
ern's  associate  degree  nursing  program, 
the  Court  concluded,  was  "a  legitimate 
academic  policy"  to  train  nurses  for  the 
wide  variety  of  positions  a  registered 
nurse  could  possibly  occupy.51  It  exam- 
such  as  Southeastern  are  only  'encour- 
age[d].  .  .to  adopt  and  implement  such  policies 
and  procedures,'.  .  .we  stressed  that  Congress 
understood  [that]  accommodation  of  the  needs  of 
handicapped  persons  may  require  affirmative 
action  and  knew  how  to  provide  for  it  in  those 
instances  where  it  wished  to  do  so."  451  U.S.  at 
27. 

51  442  U.S.  at  413  n.  12.  By  focusing  on  South- 
eastern's  existing  purpose,  the  Court  unnecessar- 
ily concentrated  on  what  Davis  could  not  do.  An 
inclusive  approach,  which  starts  with  what  Davis 
could  do,  would  be  more  consistent  with  the  full 
participation  mandate,  which  was  taken  by  the 
Fourth  Circuit  Court  of  Appeals.  See  id.  at  408  n. 
8.  Many  handicapped  people  can  accomplish 
some  jobs  in  a  given  profession  but  not  others. 
For  example,  doctors  who  are  totally  sightless 
cannot  be  surgeons  but,  with  the  help  of  nurses 
and  trained  assistants,  are  practicing  general 
medicine,  family  medicine,  obstetrics  and  gyne- 
cology, pediatrics,  internal  medicine,  physical 
medicine  and  rehabilitation,  sports  medicine, 
and  psychiatry.  See  Spencer  B.  Lewis,  M.D.,  "The 
Physically  Handicapped  Physician,"  in  The  Phy- 
sician: A  Professional  Under  Stress,  ed.  John 
Callan,  M.D.  (Norwalk,  Conn.:  Appleton-Centu- 
ry-Crofts,  1983).  The  Davis  court  could  have 
asked  whether  Southeastern  could  train  Davis, 
given  reasonable  accommodation  to  her  individu- 
al functional  limitations,  to  serve  competently  as 
a  registered  nurse  in  any  of  the  jobs  a  registered 
nurse  usually  performs.  The  extent  to  which  her 
training  differed  substantially  from  that  of  other 
Southeastern  students  could  be  reflected  in  Dav- 
is's degree,  with  appropriate  restrictions  placed 
on  her  RN  license.  The  Supreme  Court,  however, 


111 


ined  the  means — a  clinical  training  com- 
ponent and  academic  courses — for  im- 
parting skills  to  achieve  that  purpose 
and  concluded  that  both  academic  and 
on-the-job  training  were  required  and 
were  the  usual  modes  of  instruction.52 
By  identifying  the  essence  of  the  pro- 
gram, its  purpose,  and  the  necessary 
means  of  achieving  its  purpose,  the 
Court  established  qualitative  bench- 
marks for  determining  the  legitimacy  of 
the  physical  requirements  and  the  avail- 
ability of  accommodations  that  are  rea- 
sonable.53 Based  on  a  limited  record,  the 
Court  determined  that  the  ability  to 
understand  speech  other  than  through 
lipreading  was  essential  for  safe  partici- 
pation in  the  clinical  training  program 
and  for  many  registered  nursing  posi- 
tions.54 

Rather  than  generalizing  about 
deafness,  the  Court  adopted  an  individu- 
alized approach.  It  examined  the  record 
to  ascertain  the  degree  to  which  Davis' 
particular  hearing  impairment  affected 
the  necessary  functional  ability  to  under- 
stand aural  communication  without  lip- 
reading.  The  Court,  however,  did  gener- 
alize about  the  abilities  of  deaf  people  to 
be  nurses.  The  Court's  analysis,  there- 
fore, can  also  be  viewed  as  excluding  an 


explicitly  rejected  this  approach.  442  U.S.  at  413 
&  n.  12. 

52  442  U.S.  401-02;  409-10;  413. 

53  The  importance  of  these  benchmarks  for 
determining  the  extent  of  the  duty  to  accommo- 
date is  discussed  in  this  chapter  in  the  section 
entitled  "Limitations  Upon  the  Obligation  to 
Accommodate." 

54  442  U.S.  at  407. 

55  The  validity  of  such  blanket  exclusions  are 
discussed  in  the  section  entitled  "Exclusionary 
Classifications,"  below.  The  record  in  the  district 
court   apparently   contained    no   evidence   that 


entire  class  of  hearing-impaired  people 
from  the  nursing  profession.55 

Having  examined  the  program  and  the 
person,  the  Court  initially  concluded 
that  Davis  could  not  safely  participate  in 
the  existing  nursing  program.  Despite 
this  determination  that  she  did  not  meet 
necessary  physical  requirements,  the 
Court  went  on  to  analyze  whether  there 
were  any  accommodations  that  could 
permit  her  safe  participation. 

Davis  had  contended  that  the  college 
could  modify  its  clinical  program  by 
waiving  certain  required  courses.  The 
Supreme  Court  rejected  the  idea  of  waiv- 
ing the  clinical  component  and  permit- 
ting Davis  to  take  only  academic  courses 
because:  "[w]hatever  benefits  [she]  might 
realize  from  such  a  course  of  study,  she 
would  not  receive  even  a  rough  equiva- 
lent of  the  training  a  nursing  program 
normally  gives.  Such  a  fundamental  al- 
teration in  the  nature  of  a  program  is  far 
more  than  the  'modification'  the  regula- 
tion requires."56 

Alternatively,  Davis  argued  that  indi- 
vidual faculty  supervision  would  permit 
her  safe  participation  in  the  clinical 
program.  But  the  Court  dismissed  this 
request  because  section  504's  implement- 
ing regulations  also  explicitly  reject  the 
kind  of  personal  assistance  Davis  re- 
hearing-impaired  persons  can  work  safely  as 
nurses,  although  such  evidence  is  available.  In 
1976,  for  example,  a  Civil  Service  Commission 
survey  indicated  that  150  hearing-disabled  per- 
sons were  working  as  nurses  for  the  Federal 
Government.  For  further  statistics  on  the  num- 
bers of  nurses  practicing  their  profession  despite 
a  severe  or  total  hearing  loss,  see  Note,  "Accom- 
modating the  Handicapped:  Rehabilitating  Sec- 
tion 504  After  Southeastern,  "Colum.  L.  Rev.,  vol. 
80  (1980),  pp.  171, 190,  n.  131. 
56    442  U.S.  at  410. 


112 


quired  in  order  to  participate  safely  in 
the  clinical  program.  Although  they  do 
mandate  the  provision  of  auxiliary  aids, 
specifically  including  interpreters  for  the 
deaf,  the  regulations  make  optional  the 
provision  of  attendants  and  other  "ser- 
vices of  a  personalized  nature."57  In 
effect,  the  Court  concluded  that  there 
were  no  accommodations  that  the  law 
could  require  that  would  enable  Davis  to 
participate  safely  in  the  nursing  pro- 
gram. 

In  dicta,  the  Court  suggested  the  outer 
boundaries  of  the  duty  to  accommodate. 
These  limitations  have  been  the  focus  of 
much  attention  by  the  courts  and  regula- 
tors and  have  caused  considerable  confu- 
sion.58 According  to  the  Court,  a  "funda- 
mental alteration  in  the  nature  of  a 
program"  is  not  required.59  This  qualita- 
tive restriction  makes  unnecessary  modi- 
fications that  run  the  risk  of  affecting 
the  program's  essence.  The  Court  also 
suggested  that  accommodations  could 
not  be  required  if  they  would  result  in 
"undue  financial  and  administrative 
burdens."60  While  protecting  a  pro- 
gram's essential  components,  these 
quantitative  restrictions  also  acknowl- 
edge that  some  administrative  alter- 
ations and  some  costs  are  clearly  within 
the  scope  of  the  duty  to  accommodate. 


57  Id.  at  408,  n.  9,  citing  45  C.F.R.  §84.44(d)(2) 
(1978).  Southeastern  could  voluntarily  make  such 
an  accommodation  if  it  wished  to  do  so.  Davis  sets 
the  limits  of  what  nondiscrimination  law  requires 
in  the  way  of  accommodation. 

58  The  limitations  on  the  duty  to  accommodate 
are  analyzed  in  this  chapter  in  the  section 
entitled   "Limitations   Upon   the  Obligation   to 

59  442  U.S.  at  410.  The  Court  also  said  that 
"substantial  modifications"  were  not  required  by 
section  504.  Id.  at  405,  411  n.  10  ("substantial 
changes"),  413.  These  restrictions  on  the  duty  to 
accommodate  are  equivalent. 


Finally,  the  opinion  implies  other  sub- 
stantive limitations  by  the  "reasonable" 
limitation  to  accommodations,  such  as 
considerations  of  safety  and  the  degree  to 
which  personalized  services  may  be  re- 
quired. As  was  noted  earlier,  however, 
the  Davis  decision  did  not  discuss  this 
reasonableness  issue  because  the  Court 
concluded  that  Davis  could  not  benefit 
from  any  accommodation  that  section 
504  required.61  The  Court's  analysis 
compelled  it  to  conclude  that  Davis  was 
not  otherwise  qualified,  with  or  without 
accommodation,  to  participate  in  South- 
eastern's  associate  degree  nursing  pro- 
gram. 

Davis  has  spawned  some  disagreement 
in  lower  courts  about  aspects  of  the  duty 
to  accommodate  in  employment,  educa- 
tion, and  transportation.  Some  of  the 
divergence  in  analysis  flows  from  con- 
flicting views  over  how  the  Davis  holding 
should  be  interpreted  in  different  factual 
settings. 

Southeastern  Community  College  was 
a  State  educational  institution  whose 
nursing  program  offered  academic 
courses  as  well  as  supervised  experience 
working  with  patients.62  Consequently, 
two  of  the  Court's  major  concerns  were 
maintaining  academic  standards63     and 

60  Id.  at  412. 

61  See  Camenisch  v.  University  of  Tex.,  616  F.2d 
127,  133  (5th  Cir.  1980),  vacated  as  moot,  451  U.S. 
390  (1981);  Majors  v.  Housing  Auth.  of  DeKalb 
County,  Ga.,  652  F.2d  454,  457,  458  (5th  Cir.  1981); 
Tatro  v.  State  of  Tex.,  625  F.2d  557  (5th  Cir.  1980). 

62  442  U.S.  at  400-03. 

63  E.g., id.  at  410,  413.  See  also  New  Mexico  Ass'n 
for  Retarded  Citizens  v.  New  Mexico,  678  F.2d 
847,  852  (10th  Cir.  1982);  Brookhart  v.  Illinois 
State  Bd.  of  Educ,  697  F.2d  179,  180-81,  183-84 
(7th  Cir.  1983) 


113 


avoiding  harm  to  third  parties.64  These 
concerns  informed  Davis'  holding  that  a 
school  need  not  ignore  necessary  physi- 
cal ability  requirements,  lower  its  admis- 
sions standards,  or  make  such  funda- 
mental alterations  in  its  program  that  its 
legitimate  academic  purpose  cannot  be 
achieved.  As  succeeding  sections  of  this 
chapter  detail,  the  Davis  holdings  should 
be  applied  in  light  of  the  societal  area 
and  the  particular  facts  involved  in  each 
case. 

Another  source  of  differing  analysis 
stems  from  the  difficulty  in  fashioning 
precise  legal  standards  governing  rea- 
sonable accommodation.  In  viewing  ac- 
commodation as  matching  people  to  pro- 
grams by  individualizing  opportunities, 
succeeding  sections  of  this  chapter  sug- 
gest a  useful  framework  in  which  to 
understand  existing  law  and  regulations 
and  the  complex  interplay  of  issues  sur- 
rounding reasonable  accommodation. 


64  See  Southeastern  Community  College  v. 
Davis,  442  U.S.  at  401;  Doe  v.  New  York  Univ., 
666  F.2d  761,  775  (2d  Cir.  1981);  Rhode  Island 
Handicapped  Action  Comm.  v.  Rhode  Island  Pub. 
Transit  Auth.,  549  F.  Supp.  592,  606  (D.R.I.  1982). 

65  The  definition  of  handicapped  is  discussed  in 
chap.  1  in  the  section  entitled  "Defining  'Handi- 
caps'." Although  the  definition  of  handicap  may 
not  be  problem  free,  it  does  not  present  difficult 
issues  with  respect  to  reasonable  accommodation. 

66  29  U.S.C.  §794  (Supp.  V  1981).  The  statutory 
language  appears  somewhat  redundant  because 
it  prohibits  discrimination  "solely  by  reason  of 
his  handicap."  The  limitation  of  protection  to 
"otherwise  qualified"  appears  unnecessary.  If  a 
handicapped  person  is  denied  an  opportunity 
because  he  or  she  is  not  qualified,  the  discrimina- 
tion is  not  "solely  on  the  basis  of  [his  or  her] 
handicap."  To  have  been  discriminated  against, 
one  must  ipso  facto  be  qualified. 

67  Both  the  Davis  decision  and  the  HEW  regula- 
tions construe  "otherwise  qualified"  to  be  the 
equivalent  of  "qualified."  The  explanatory  note 
following  the  regulations  explains: 


Defining  Qualified  Handicapped 
Individuals 

An  initial  question  arising  in  regard  to 
legal  standards  that  govern  reasonable 
accommodation  is  to  whom  must  a  rea- 
sonable accommodation  be  made?  Sec- 
tions 501,  503,  and  504  of  the  Rehabilita- 
tion Act  apply  only  to  a  particular  class 
of  handicapped  people65  — those  who  are 
"otherwise  qualified."66  Ascertaining 
who  is  qualified,  therefore,  is  extremely 
important.67  Determining  who  is  a  "qua- 
lified handicapped  individual"  is  a  com- 
plex issue  because  qualified  has  two 
distinct  but  interrelated  legal  meanings. 

Stated  Qualifications 

In  one  sense,  qualified  refers  to  meet- 
ing selection  criteria.  Some  programs, 
such  as  those  in  employment  and  postse- 
condary  education,  limit  eligibility  to  a 
select  group  of  the  public.  To  narrow  the 
field  of  potential  beneficiaries  or  partici- 
pants, compliance  with  admission  or  se- 
lection criteria  is  made  a  condition  of 

The  Department  believes  that  the  omission  of 
the  word  "otherwise"  [from  the  regulation's 
definition  of  "qualified  handicapped  individ- 
ual"] is  necessary  in  order  to  comport  with 
the  intent  of  the  statute  because,  read  liter- 
ally, "otherwise"  qualified  handicapped  per- 
sons include  persons  who  are  qualified  ex- 
cept for  their  handicap,  rather  than  in  spite 
of  their  handicap.  Under  such  a  literal 
reading,  a  blind  person  possessing  all  of  the 
qualifications  for  driving  a  bus  except  sight 
could  be  said  to  be  "otherwise  qualified"  for 
the  job  of  driving.  Clearly,  such  a  result  was 
not  intended  by  Congress.  In  all  other  re- 
spects, the  terms  "qualified"  and  "otherwise 
qualified"  are  intended  to  be  interchange- 
able. 


Southeastern  Community  College  v.  Davis,  442 
U.S.  at  407,  n.  7,  citing  45  C.F.R.  pt.  84,  app.  A,  p. 

405  (1978). 


114 


participation  in  the  program.  These  re- 
quired qualifications  generally  fall  into 
three  categories:  academic  standards, 
such  as  a  high  school  or  college  diploma 
or  a  degree  in  a  particular  discipline; 
technical  or  experiential  credentials, 
such  as  5  years  of  teaching  experience  or 
training  in  data  processing;  or  explicit 
performance  standards,  such  as  the  abili- 
ty to  lift  40  pounds  or  to  translate  a 
foreign  language.  To  the  extent  that 
selection  or  admission  criteria  involve 
measurements  of  physical  or  mental  "i- 
rregularities"  or  ability,  they  may  whol- 
ly or  disproportionately  exclude  handi- 
capped people.  When  a  program  is  selec- 
tive and  excludes  a  person  on  the  basis  of 
a  handicap,  the  first  question  that  arises 
is  whether  the  qualifications  standards 
are  legitimate,  that  is,  whether  they  are 
sufficiently  related  to  the  program  or 
activity  in  question.  The  legitimacy  of 
qualifications  standards  is  discussed  in 
this  chapter  in  the  section  entitled  "Ex- 
clusionary Classifications." 

Stated  qualifications  are  not,  as  one 
might  expect,  however,  the  sole  determi- 
nant of  who  is  and  who  is  not  qualified. 
Indeed,  in  certain  circumstances,  a  hand- 
icapped person  who  does  not  satisfy 
legitimate  selection  criteria  may  still  be 
qualified.  This  situation  occurs  because 
the  law  focuses  on  a  second  meaning  of 
qualified. 

88  Camenisch  v.  University  of  Tex.,  616  F.2d  127, 
133  (5th  Cir.  1980),  vacated  as  moot,  451  U.S.  390 
(1981);  Majors  v.  Housing  Auth.  of  DeKalb  Coun- 
ty, Ga.,  652  F.2d  454,  457,  458  (5th  Cir.  1981) 
(mental  patient  who  required  a  dog  in  order  to 
live  alone  was  capable  of  benefiting  from  public 
housing);  Tatro  v.  State  of  Tex.,  625  F.2d  557,  563, 
564  (5th  Cir.  1980)  (provision  of  clean  intermit- 
tent catheterization  to  school  girl  rendered  her 
capable  of  benefiting  from  regular  classroom 
instruction).  See  also  Garrity  v.  Galen,  522  F. 


Essential  Functions  and  Capability  of 
Benefiting 

In  its  second  sense,  qualified  is  an 
ability  standard  independent  from  selec- 
tion criteria.  Qualified  in  this  context 
means  ability  to  perform  or  participate 
after  considering  the  availability  of  a 
reasonable  accommodation.  The  issue  is 
whether  the  handicapped  person  is  able 
to  perform  or  participate  in  the  program. 
Some  handicapped  people  will  be  able  to 
participate  or  perform  without  any  rea- 
sonable accommodation;  others  will  need 
an  accommodation  in  order  to  partici- 
pate; still  others  will  be  unable  to  partici- 
pate even  with  accommodation. 

In  contexts  like  education  and  hous- 
ing, one  standard  for  analyzing  whether 
a  person  is  qualified  is  that  the  person 
must  be  "capable  of  benefiting"  from  the 
program.68  A  more  common  standard  is 
the  ability  to  perform  "essential  func- 
tions." 

The  sections  504  and  501  regulations 
have  generally  adopted  the  approach 
that  handicapped  persons  must  meet 
essential  program  participation  or  ad- 
mission requirements  in  order  to  be 
considered  legally  "qualified."  The  HEW 
(now  HHS)  regulations  also  adopt  the 
"essential  requirements"  approach  with 
respect  to  education69  and  other  federal- 

Supp  171,  214-15  (D.N.H.  1981)  (mentally  retard- 
ed residents  of  State  school  discriminated  against 
on  generalized  assumption  that  they  were  not 
able  to  benefit  from  certain  programs  and  activi- 
ties). 

69  45  C.F.R.  §84.3(k)(3)  (1982).  See  discussion  of 
Southeastern  Community  College  v.  Davis  in  the 
preceding  section.  With  respect  to  public  pre- 
school, elementary,  secondary,  or  adult  educa- 
tion, the  regulations  define  qualified  in  terms  of 


115 


ly  funded  services.70  Similarly,  the  De- 
partment of  Justice  government-wide 
section  504  coordinating  regulations  de- 
fine a  qualified  handicapped  person,  with 
respect  to  employment,  as  one  who  can 
perform  the  essential  functions  of  the  job 
with  reasonable  accommodation  or,  with 
respect  to  services,  as  one  who  meets  the 
essential  eligibility  requirements  for  re- 
ceiving such  services.71 

One  notable  exception  to  this  essential 
function  definition  of  qualified  occurs  in 
the  section  503  regulations,  which  define 
a  qualified  handicapped  individual  as 
one  "who  is  capable  of  performing  a 
particular  job,  with  reasonable  accom- 
modation to  his  or  her  handicap."72 
Because  the  reasonable  accommodation 
requirement  is  broadly  stated,73  how- 
ever, it  would  appear  to  include  paring 


age  at  which  such  educational  services  are  pro- 
vided to  the  nonhandicapped,  are  mandatory,  or 
are  required  by  the  Education  of  All  Handi- 
capped Children  Act.  Id.  at  §84.3(k)(2). 

70  Id.  at  §84.3(k)(4)  (1982). 

71  28  C.F.R.  §41.32  (1982). 

72  41  C.F.R.  §60-741.2  (1982). 

73  Although  reasonable  accommodation  is  not 
defined,  Federal  contractors  are  obligated  to 
make  reasonable  accommodations  unless  an  ac- 
commodation would  result  in  an  undue  hardship. 
41  C.F.R.  §60-741. 5(d)  (1982).  In  addition,  they 
must  ensure  that  their  physical  and  mental  job 
requirements  are  "job  related  and  are  consistent 
with  business  necessity  and  the  safe  performance 
of  the  job."  Id.  at  60-741. 5(c). 

74  HEW  reached  the  same  conclusion.  The 
original  commentary  to  the  HEW  (now  HHS) 
section  504  regulation  notes: 

The  term  "essential  functions"  does  not  appear 
in  the  corresponding  provision  in  the  Depart- 
ment of  Labor's  section  503  regulation,  and  a 
few  commenters  objected  to  its  inclusion  on 
the  ground  that  a  handicapped  person  would 
be  able  to  perform  all  job  tasks.  However,  the 
Department  believes  that  inclusion  of  the 
phrase  is  useful  in  emphasizing  that  handi- 
capped persons  should  not  be  disqualified 


job  requirements  down  to  their  essential 
components.74 

The  analysis  of  ability  to  benefit  and  to 
perform  essential  functions  applies  in 
various  contexts,  including  situations 
where  there  are  no  stated  qualifications 
whatever.  Because  some  programs  are 
not  selective  and  are  intended  to  be  open 
to  the  general  public,  such  as  public  mass 
transit75  or  public  elementary  and  secon- 
dary education,76  there  may  not  be  any 
stated  qualifications.  Nonetheless,  under 
such  programs  there  may  still  be  a 
determination  whether  particular  handi- 
capped people  are  able  to  benefit  or 
perform  essential  functions. 

Such  analysis  makes  it  possible  that  a 
handicapped  person  not  satisfying  legiti- 
mate selection  criteria  may  still  be  able 
to  be  a  qualified  handicapped  person  by 

simply  because  they  may  have  difficulty  in 
peforming  tasks  that  bear  only  a  marginal 
relationship  to  a  particular  job.  Further,  we 
are  convinced  that  inclusion  of  the  phrase  is 
not  inconsistent  with  the  Department  of 
Labor's  application  of  its  definition.  45  C.F.R. 
pt.  84,  app.  A,  subpt.  A,  no.  5,  p.  296  (1982). 

75  As  one  court  has  put  it,  "There  simply  are  no 
qualifications  to  ride  a  bus."  Rhode  Island  Handi- 
capped Action  Comm.  v.  Rhode  Island  Pub. 
Transit  Auth.,  549  F.  Supp.  592,  606  (1982). 

76  Almost  every  State  requires  universal,  com- 
pulsory education  for  children  between  certain 
specified  ages.  About  half  the  States  have  consti- 
tutional provisions  that  require  a  public  educa- 
tion system  to  be  "equally  available  to  all." 
Marcia  P.  Burgdorf  and  Robert  Burgdorf,  Jr.,  "A 
History  of  Unequal  Treatment:  The  Qualifica- 
tions of  Handicapped  Persons  as  a  'Suspect  Class' 
Under  the  Equal  Protection  Clause,"  Santa  Clara 
L.  Rev.,  vol.  15  (1975),  p.  868  (hereafter  cited  as 
"A  History  of  Unequal  Treatment").  But  see  Ala. 
Const.  Amend.  Ill,  §256  (although  there  is  no 
"right"  to  education,  Alabama's  policy  is  to 
"foster  and  promote"  the  education  of  its  citizens 
in  a  manner  and  extent  consistent  with  its 
available  resources). 


116 


demonstrating  an  ability  to  perform  es- 
sential program  functions. 

In  Prewitt  v.  U.S.  Postal  Service,77  a 
veteran  was  rejected  for  a  clerk-carrier 
position  because  he  had  limited  move- 
ment in  his  left  shoulder.78  The  medical 
standards  for  the  job  of  clerk-carrier  in 
the  postal  service  specified  that  appli- 
cants for  the  position  must  "meet  a  wide 
range  of  physical  criteria,  including,  in- 
ter alia,  the  ability  to  see,  hear,  lift  heavy 
weights,  carry  moderate  weights,  reach 
above  shoulder  and  use  fingers  and  both 
hands."79  Prewitt  had,  however,  previ- 
ously performed  competently  in  a  postal 
service  position  requiring  similar  physi- 
cal functional  ability  and  his  physical 
condition  had  not  significantly  altered 
during  the  intervening  years.80 

The  Fifth  Circuit  Court  of  Appeals 
ruled  that,  in  examining  selection  crite- 
ria, the: 


test  is  whether  a  handicapped  per- 
son who  meets  all  employment  crite- 
ria except  for  the  challenged  dis- 
criminatory criterion  "can  perform 
the  essential  functions  of  the  posi- 
tion in  question  without  endanger- 
ing the  health  and  safety  of  the 
individual  or  others."  If  the  individ- 
ual can  so  perform,  he  must  not  be 
subjected  to  discrimination.81 


"    662  F.2d  292  (5th  Cir.  1981). 

78  Id.  at  298-99. 

79  Id  at  298. 

80  Id  at  297. 

81  Id  at  307  (quoting  28  C.F.R.  §§1613.702(f), 
1613.703).  The  court  also  stated  that  if  a  reason- 
able accommodation  exists  that  would  permit  the 
plaintiff  to  perform  the  essential  duties  of  the 
job,  he  should  also  be  considered  qualified.  662 
F.2d  at  307-10. 

82  662  F.2d  at  309-10. 


The  court  stated  that  the  issue  was 
either  whether  Prewitt  could  in  fact 
perform  in  the  clerk-carrier  position, 
despite  the  physical  ability  criteria,  or 
whether  he  could  perform  the  job  with  a 
reasonable  accommodation  regardless  of 
the  criterion.82 

Role  of  Accommodations  in 
Determining  Who  Is  Qualified 

Reasonable  accommodation  may  have 
a  major  effect  on  the  determination  of 
whether  the  handicapped  person  is  capa- 
ble of  meeting  the  essential  require- 
ments or  is  capable  of  benefiting  from 
the  program.  Because  accommodations 
may  ameliorate  the  effect  of  functional 
limitations  and  eliminate  unnecessary 
barriers  to  participation,  becoming  a 
qualified  handicapped  person  may  hinge 
on  whether  available  accommodations 
are  provided.  Because  the  availability  of 
accommodations  almost  invariably  in- 
creases the  pool  of  people  who  are  quali- 
fied, the  link  between  the  two  concepts  is 
of  crucial  importance. 

This  linkage  between  qualification  and 
accommodation  is  accomplished  in  two 
different  ways  in  the  Federal  regula- 
tions. All  Federal  regulations  define  qua- 
lified in  the  employment  context  to  in- 
clude consideration  of  available  reason- 
able accommodation.83  In  nonemploy- 
ment  situations,  the  regulations  require 

83  28  C.F.R.  §41.32  (1982);  45  C.F.R.  §84.3(k)(l) 
(1982);  29  C.F.R.  §1613.702(f)  (1982);  41  C.F.R. 
§60-741.2  (1982);  Prewitt  v.  United  States  Postal 
Service,  662  F.2d  292,  309-10  (5th  Cir.  1981);  Bey 
v.  Bolger,  540  F.  Supp.  910,  924-26  (E.D.  Pa. 
1982).  However,  the  determination  of  whether  a 
reasonable  accommodation  exists  that  would 
render  a  handicapped  person  qualified  need  only 
occur  after  the  handicapped  person  has  satisfied 
all  of  the  other  qualifications  except  the  impair- 
ment-related qualification.  45  C.F.R.   §84. 12(a); 


117 


modifications  in  specified  program  tasks 
or  activities  or  the  provision  of  auxiliary 
services  or  aids  to  enable  participation 
by  handicapped  people  who  could  meet 
the  "essential"  requirements.84  Courts 
have  frequently  ignored  these  different 
ways  of  linking  qualification  to  accom- 
modation and  simply  assessed  the  quali- 
fications of  handicapped  people  in  light 
of  potential  accommodations.85 

Having  addressed  what  makes  a  hand- 
icapped person  qualified,  it  is  necessary 
also  to  indicate  what  it  means  to  be 
unqualified.  A  handicapped  person  is 
unqualified  if,  after  taking  into  account 
the  rendering  of  reasonable  accommoda- 
tion, the  individual  is  not  capable  of 
benefiting  from  the  program,  performing 
the  essential  functions,  or  meeting  essen- 
tial eligibility  requirements.  Thus,  in 
Southeastern  Community  College  v. 
Davis,  the  Court  ruled  that  Davis  was 
not  qualified  because  she  could  not  meet 
the  college's  legitimate  physical  require- 
ment of  ability  to  understand  speech 
without  lipreading,  and  no  accommoda- 
tion existed  that  would  permit  her  to 
benefit  from  the  program. 

There  appears  to  be  some  circularity 
in  the  concept  and  application  of  "other- 
wise qualified."  Whether  a  person  is 
qualified  is  a  threshold  issue  that  must 

Upshur  v.  Love,  474  F.  Supp.  332,  341-42  (N.D. 
Cal.  1979).  Specifically,  courts  have  construed 
"qualified"  in  employment  to  mean  the  meeting 
of  all  of  the  qualifications  of  a  particular  position 
except  the  qualifications  that  cannot  be  met  due 
to  a  physical  impairment,  Prewitt  v.  United 
States  Postal  Service,  662  F.2d  292,  309-10  (5th 
Cir.  1981);  Bey  v.  Bolger,  540  F.  Supp.  910,  924-26 
(E.D.  Pa.  1982),  but  only  if  the  handicapped 
person  can  also  make  some  showing  that  the 
physical  standard  is  either  not  job  related  or 
might  be  met  by  some  form  of  reasonable  accom- 
modation. Id.  This  delineation  of  qualification 
does  not  conflict  with  the  Supreme  Court's  inter- 


be  resolved  before  the  individual  can 
invoke  the  antidiscrimination  statutes.  A 
person  who  is  not  otherwise  qualified  is 
not  covered  by,  for  example,  section  504. 
To  determine  whether  a  person  is  quali- 
fied, however,  there  must  be  an  examina- 
tion of  essential  program  functions,  the 
person's  abilities,  and  possible  accommo- 
dations— some  of  the  ultimate  legal  con- 
siderations that  may  establish  unlawful 
discrimination.  The  threshold  question — 
whether  a  person  is  covered  by  the 
nondiscrimination  provision — is  an- 
swered only  after  extensive  analysis  that 
assumes  coverage.  As  the  Davis  ruling 
illustrates,  the  decision  in  such  a  case 
may  be  a  determination  that  the  person 
is  not  qualified,  as  opposed  to  a  finding 
that  the  person  was  qualified  but  was  not 
discriminated  against. 

Individualizing  Opportunities 

Individualization  is  a  key  orienting 
legal  principle  in  handicap  nondiscrimi- 
nation law.  A  case-by-case  examination 
of  functional  abilities  in  an  identified 
setting  and  an  analysis  of  available  ac- 
commodations to  match  a  particular  per- 
son to  a  particular  activity  is  the  core  of 
this  requirement.86  Application  of  the 
individualization  principle  produces  dif- 
fering legal  standards  in  different  socie- 

pretation  in  Davis,  but  merely  attempts  to  allo- 
cate the  burden  of  proof  to  the  employer  once  the 
issue  has  been  raised  concerning  the  validity  of 
the  standard  or  the  availability  of  accommoda- 
tion. 

84  See  the  section  entitled  "What  Is  Reasonable 
Accommodation?"  above. 

85  Majors  v.  Housing  Auth.  of  DeKalb  County, 
Ga.,  652  F.2d  454,  457,  458  (5th  Cir.  1981);  Tatro  v. 
State  of  Tex.,  625  F.2d  557,  563-64  (5th  Cir.  1980). 

86  See  generally  chap.  5  and  the  section  entitled 
"Legal  Implications  of  the  Spectrum  and  Social 
Contact  Principles"  therein. 


118 


tal  areas,  such  as  elementary  and  secon- 
dary education,  higher  education,  and 
employment,  in  order  to  reflect  their 
varying  concerns  and  circumstances. 
That  different  settings  require  variations 
in  a  central  legal  concept  has  been 
recognized  within  other  areas  of  law. 
Statutory  prohibitions  against  racial  dis- 
crimination, for  example,  frequently  use 
an  "effects  test"87  to  define  liability,  but 
the  precise  standards  for  the  test  vary  in, 
for  example,  voting,88  employment,89 
and  Federal  financial  assistance90  be- 
cause of  the  different  contexts.  The  prin- 
ciple that  statutory  standards  vary  with 
particular  circumstances  has  also  been 
recognized  with  respect  to  individualiza- 
tion required  by  section  504. 91 

87  The  effects  test  and  its  rationale  have  been 
explained  as  follows: 

Because  discrimination  can  be  either  intended 
or  unintended,  civil  rights  law  has  two 
markedly  different  legal  standards  for  deter- 
mining when  illegal  discrimination  has  oc- 
curred. Constitutional  guarantees  of  equal 
protection  of  the  laws,  contained  in  the  5th 
and  14th  amendments,  are  violated  only  by 
intentional,  purposeful,  or  deliberate  actions 
that  harm  persons  because  of  their  race, 
national  origin,  or  sex.  Various  laws,  howev- 
er,. .  .forbid  actions,  regardless  of  their  in- 
tent, that  have  a  disproportionate  effect  on 
the  basis  of  race,  national  origin,  and  sex  and 
that  cannot  be  justified  by  any  legitimate 
reason. 

U.S.,  Commission  on  Civil  Rights,  Affirmative 
Action  in  the  1980s:  Dismantling  the  Process  of 
Discrimination  (1981),  p.  16  (footnotes  omitted) 
(hereafter  cited  as  Affirmative  Action  State- 
ment). 

88  See  42  U.S.C.A.  §1973  (1981  &  Supp.  1983);  D. 
Cardwell,  "Voter  Dilution  and  the  Standard  of 
Proof,"  Urban  Lawyer,  vol.  14  (Fall  1982),  p.  863; 
Note,  "Amending  Section  2  of  the  Voting  Rights 
Act  of  1965,"  Case  W.  Res.  L.  Rev.,  vol.  32  (1982), 
p.  500. 

89  See  Griggs  v.  Duke  Power  Co.,  401  U.S.  424, 
429-36  (1971);  Affirmative  Action  Statement,  pp. 
17-18. 


Elementary  and  secondary  education, 
higher  education,  and  employment  are 
the  three  areas  in  which  the  courts  and 
regulators  have  consistently  interpreted 
handicap  discrimination  laws  to  require 
tailoring  opportunities  to  individuals.92 
Each  area,  however,  has  its  own  particu- 
lar concerns  leading  to  somewhat  differ- 
ent standards. 

A  free,  appropriate,  public  elementary 
and  secondary  education  that  meets  the 
individual  needs  of  handicapped  children 
is  guaranteed  by  section  504  of  the 
Rehabilitation  Act,  the  Education  for  All 
Handicapped  Children  Act  (EAHCA), 
and  the  United  States  Constitution.93 
Consequently,  the  obligation  to  make 
accommodations  to  provide  meaningful 

90  See  Lau  v.  Nichols,  414  U.S.  563,  566-68  (1974). 
Cf.  Charles  F.  Abernathy,  "Title  VI  and  the 
Constitution:  A  Regulatory  Model  For  Defining 
Discrimination,"  Geo.  L.J.,  vol.  70  (1981),  p.  1. 

91  Jose  P.  v.  Ambach,  557  F.  Supp.  1230,  1235 
(E.D.  N.Y.  1983). 

92  The  regulations  also  require  accommodations 
in  other  areas,  such  as  in  the  delivery  of  health 
and  social  welfare  benefits.  45  C.F.R.  §84.52 
(1982).  These  requirements  have  not  yet  been  the 
subject  of  much  litigation  or  amplification  by 
regulators.  A  recipient  that  provides  notice  of 
benefits  or  services,  or  written  material  concern- 
ing waivers  of  rights  and  consent  to  treatment, 
must  "take  such  steps  as  are  necessary  to  ensure 
that  qualified  handicapped  persons,  including 
those  with  impaired  sensory  or  speaking  skills, 
are  not  denied  effective  notice  because  of  their 
handicap."  Id.  at  §84. 52(b).  The  regulations  also 
require  effective  provision  of  emergency  medical 
care  to  hearing-impaired  persons,  which  may 
include  the  assistance  of  interpreters.  Id.  at 
§84.52(c). 

93  See  34  C.F.R.  104.33  (1982);  Board  of  Educ.  of 
Hendrick  Hudson  Cent.  School  Dist.  v.  Rowley, 
102  S.Ct.  3034,  3041-47  (1982);  and  chap.  3  in  the 
sections  entitled  "Education  for  All  Handicapped 
Children  Act"  and  "Constitutional  Protections 
for  Handicapped  Persons." 


119 


and  equal  opportunity  is  stronger  in 
elementary  and  secondary  education 
than  in  other  areas  where  the  entitle- 
ment is  less  clear  or  does  not  exist. 

Litigation  under  EAHCA  is  usually 
coupled  with  claims  for  similar  individu- 
alized education  programs  under  section 
504.  The  courts  and,  to  a  certain  extent, 
the  section  504  regulations  have  support- 
ed the  wide  range  of  diagnostic,  evalua- 
tive, instructional,  and  medical  services 
spelled  out  by  EAHCA.94  Education 
Department  regulations  require  that 
where  an  educational  placement  is  re- 
quired in  a  program  not  operated  by  the 
agency  receiving  Federal  education 
funds,  adequate  transportation  may 
have  to  be  provided  to  and  from  the 
location  of  the  placement.95  Similarly, 
school  districts  may  be  required  to  fur- 
nish or  pay  for  residential  placement  of 
handicapped  children  if  that  is  appropri- 
ate.96 In  addition,  courts  have  required 
school  districts  to  provide  and  pay  for 
counseling97  and  some  medical  services, 
such  as  clean  instrument  catheteriza- 
tion.98 Mentally  retarded  students  also 
have  been  held  to  be  entitled  to  more 
than  the  regular  180  days  of  school  per 
year,  where  that  was  found  necessary  to 
provide  meaningful  education,99  and  to 
field  trips  and  other  supervised  recrea- 
tional activities.100     Finally,  school  dis- 

94  See20U.S.C.  §1401(17)  (1976)  for  the  listing  of 
"special  education  and  related  services"  required 
by  the  EAHCA,  discussed  in  this  chapter  in  the 
section  entitled  "What  Is  Reasonable  Accommo- 
dation?" 

95  34  C.F.R.  §104.33(c)(2)  (1982). 

96  Id.  at  §104.33(c)(3)  (1982). 

97  Gary  B.  v.  Cornin,  542  F.  Supp.  102,111  (N.D. 
111.  1981). 

98  Taro  v.  State  of  Tex.,  625  F.2d  557,  562-63  (5th 
Cir.  1981). 

99  Georgia  Ass'n  of  Retarded  Children  v.  McDan- 
iel,  511  F.  Supp.  1263, 1278  (N.D.  Ga.  1981). 


tricts  have  been  required  to  modify  their 
tests  and  testing  procedures  to  ensure 
that  they  fairly  test  ability  or  achieve- 
ment and  not  a  disability.101 

Unlike  elementary  and  secondary  edu- 
cation, there  is  no  right  to  enrollment  in 
college  or  a  vocational  training  program, 
per  se.  Admission  to  higher  education 
programs  raises  threshold  issues  of  merit 
and  competition  that  are  not  a  factor  at 
earlier  levels  of  schooling.  Consequently, 
the  right  to  individualized  opportunity  in 
higher  education,  although  extensive,  is 
not  as  sweeping. 

Federal  regulations  require  institu- 
tions of  higher  education  receiving  Fed- 
eral financial  assistance  to  make  aca- 
demic adjustments102  to  the  needs  of 
handicapped  students,  permitting,  for 
example,  a  deaf  college  student  to  meet 
an  arts  requirement  by  substituting  an 
art  course  for  a  music  appreciation 
course.103  They  also  mandate  that  col- 
leges and  universities  provide  auxiliary 
aids,104  such  as  taped  texts  for  the 
visually  impaired  and  interpreters  for 
deaf  students.105  Admissions  testing106 
and  course  examinations107  must  be 
modified  to  assess  a  student's  ability  or 
achievement  rather  than  his  or  her  func- 
tional impairment. 

In  Camenisch  v.  University  of  Texas, 108 
a  deaf  graduate  student,  already  enrolled 

100  Garrity  v.  Galen,  522  F.  Supp.  170,  187-88 
(D.N.H.  1981). 

101  Brookhart  v.  Illinois  Dep't  of  Educ,  697  F.2d 
179, 184  (7th  Cir.  1983). 

102  34  C.F.R.  §104.44  (1982). 

103  45  C.F.R.  pt.  84,  app.  A.,  subpt.  E,  no.  31,  p. 
308  (1982). 

104  34  C.F.R.  §104.44(d)(l)  and  (2)  (1982). 

105  Id.  §104.44(d)(2)  (1982). 

106  Id.  §104.42(b)(3)  (1982). 

107  Id.  §104.44(c)  (1982). 


120 


in  a  master's  degree  program,  obtained  a 
preliminary  injunction  ordering  the  uni- 
versity to  procure  and  finance  a  sign 
language  interpreter  to  permit  the  stu- 
dent to  complete  a  particular  course.  The 
Seventh  Circuit  recently  affirmed  a  dis- 
trict court  order  requiring  the  Illinois 
Department  of  Rehabilitation  Services  to 
pay  the  cost  of  a  sign  language  interpret- 
er for  a  deaf  student  at  the  Illinois 
Institute  of  Technology.109 

Employment  also  presents  issues  of 
merit  and  competition.  Handicapped 
people  are  entitled  to  have  their  individ- 
ual abilities  considered  by  an  employer110 
in  light  of  available  reasonable  accom- 
modations. But  no  handicapped  person  is 
entitled  to  a  particular  job;  nondiscrimi- 
nation merely  means  that  handicapped 
people  may  not  be  rejected  solely  because 
of  their  handicaps.  Because  the  employer 
must  benefit  from  the  employee's  work, 
reasonable  accommodation  in  the  em- 
ployment context  must  permit  the  meet- 
ing of  the  employer's  essential  needs  as 
well  as  allowing  the  employee  to  com- 
pete. 

Reasonable  accommodation  was  de- 
fined by  example  in  Federal  regulations 
as  including  job  restructuring,  part-time 
or  modified  work  schedules,  acquisition 

108  Camenisch  v.  University  of  Tex.,  616  F.2d 
127,  133  (5th  Cir.  1980),  vacated  as  moot,  451  U.S. 
390  (1981).  See  also  Crawford  v.  University  of 
N.C.,  440  F.  Supp.  1047,  1059  (M.D.  N.C.  1977). 
See  also  Barnes  v.  Converse  College,  436  F.  Supp. 
635,  637  (D.S.C.  1977). 

109  Jones  v.  Illinois  Dep't  of  Rehabilitation 
Services,  689  F.2d  724,  729-30  (7th  Cir.  1982). 
Such  services  were  also  required  in  vocational 
rehabilitation  service  agencies  for  a  class  of 
handicapped  college  students.  Schornstein  v. 
New  Jersey  Div.  of  Vocational  Rehabilitation 
Services,  519  F.  Supp.  773,  780  (D.N.J.  1981),  affd 
mem.,  688  F.2d  824  (3d  Cir.  1982). 

110  28  C.F.R.  §4153  (1982);  45  C.F.R.  §84. 12(a) 


or  modification  of  equipment  or  devices, 
provision  of  readers  or  interpreters,  and 
modifications  that  make  the  workplace 
accessible.  The  language  of  the  regula- 
tions makes  clear  that  these  examples  do 
not  describe  all  possible  accommoda- 
tions. 

Although  reasonable  accommodation 
originated  in  employment  regulations, 
only  four  cases  arising  under  section  501 
of  the  Rehabilitation  Act  have  analyzed 
the  issue.  In  Crane  v.  Lewis,111  a  district 
court  ordered  the  Federal  Aviation  Ad- 
ministration to  determine  whether  a 
hearing-impaired  applicant  could  per- 
form the  essential  job  function  of  using 
the  telephone  with  a  hearing  aid.  In 
Stutts  v.  Freeman,112  a  court  of  appeals 
ordered  the  Tennessee  Valley  Authority 
to  implement  an  alternative  means  of 
administering  a  written  standardized 
employment  test  to  an  applicant  with 
dyslexia.  In  Prewitt  v.  U.S.  Postal 
Service,113  another  court  of  appeals  re- 
quired a  district  court  to  consider  on 
remand  whether  an  accommodation, 
such  as  lowering  shelving,  would  permit 
an  applicant  with  limited  upper  arm 
movement  to  perform  essential  duties.  In 
Bey  v.  Bolger,114  however,  a  district  court 
refused  to  order  the  postal  service  to  hire 

(1982);  29  C.F.R.  §1613.704(a)  (1982);  41  C.F.R. 
§60-741. 5(d)  (1982).  Cf.  Coleman  v.  Darden,  595 
F.2d  533,  536-37  (9th  Cir.  1979),  cert,  denied,  444 
U.S.  927  (1979).  Recently,  in  upholding  the  consti- 
tutionality of  the  extension  of  the  Age  Discrimi- 
nation in  Employment  Act  to  State  and  local 
government  employees,  the  U.S.  Supreme  Court 
ruled  that  the  act  required  the  State  of  Wyoming 
to  determine  ability  to  perform  jobs  "in  a  more 
individualized  and  careful  manner."  Wyoming  v. 
EEOC,  103  S.Ct.  1054, 1062  (1983). 

111  551  F.  Supp.  27,  31-32  (D.D.C.  1982). 

112  694  F.2d  666,  668-69  (11th  Cir.  1983). 

113  662  F.2d  292,  305,  309,  n.  23  (5th  Cir.  1981). 
1M    540  F.  Supp.  910,  926  (E.D.  Pa.  1982). 


121 


an  applicant  with  extremely  high  blood 
pressure  and  give  him  a  light-duty  work 
schedule. 

Providing  Equivalent 
Opportunities 

The  objective  of  reasonable  accommo- 
dation is  to  provide  each  individual  with 
a  "meaningful  opportunity"  to  partici- 
pate. Equivalent  opportunity,  a  qualita- 
tive legal  standard  derived  from  the 
meaningful  opportunity  mandate,  pro- 
vides a  guide  to  the  appropriateness  of 
an  accommodation.  The  concept  of  equiv- 
alent opportunity,  as  extrapolated  from 
a  still-developing  body  of  regulatory  and 
case  law,  is  a  statement  of  the  overall 
goal  to  produce  full  participation.  It  is 
also  a  comparative  standard  for  measur- 
ing the  opportunity  for  participation 
provided  to  handicapped  persons  in  rela- 
tion to  the  opportunity  provided  to  oth- 
ers. By  its  nature,  equivalence  is  not  a 
fixed  standard;  it  varies  with  the  particu- 
lar situation  and  the  nature  of  the  rights 
being  asserted. 

Under  Department  of  Justice  govern- 
ment-wide section  504  regulations,  it  is 
discriminatory  to  provide  an  aid,  benefit, 
or  service  "that  is  not  as  effective  in 
affording  equal  opportunity  to  obtain  the 
same  result,  to  gain  the  same  benefit,  or 
to  reach  the  same  level  of  achievement 
as  that  provided  to  others."115  The 
original  HEW  (now  HHS)  regulations 
implementing  section  504  use  essentially 
the  same  wording  and  state  further  that 
to  be  equally  effective  an  aid,  benefit,  or 
service  is  "not  required  to  produce  the 

115  28  C.F.R.  §41.51(b)(l)(iii)  (1982).  Similar  lan- 
guage is  contained  in  the  HHS  section  504 
regulations.  45  C.F.R.  §84.4(b)(l)(ii)  &  (b)(2) 
(1982). 

116  45  C.F.R.  §84.4(b)(2)  (1982). 


identical  result  or  level  of  achieve- 
ment."116 The  explanatory  appendix 
following  the  regulations  expounds  on 
the  concept  as  follows: 


[T]he  term  "equally  effective,".  .  .is 
intended  to  encompass  the  concept 
of  equivalent,  as  opposed  to  identi- 
cal, services  and  to  acknowledge  the 
fact  that  in  order  to  meet  the  indi- 
vidual needs  of  handicapped  persons 
to  the  same  extent  that  the  corre- 
sponding needs  of  nonhandicapped 
persons  are  met,  adjustments  to  reg- 
ular programs  or  the  provision  of 
different  programs  may  sometimes 
be  necessary.  For  example,  a  welfare 
office  that  uses  the  telephone  for 
communicating  with  its  clients  must 
provide  alternative  modes  of  com- 
municating with  its  deaf  clients. 
This  standard  parallels  the  one  es- 
tablished under  Title  VI  of  the  Civil 
Rights  Act  of  1964  with  respect  to 
the  provision  of  educational  services 
to  students  whose  primary  language 
is  not  English.  See  Lau  v.  Nich- 
ols. .  .  .117 

The  concept  of  equivalent  opportunity 
was  further  amplified  in  Garrity  v.  Gal- 
en, where  a  Federal  court  was  confronted 
with  a  challenge  to  inadequate  educa- 
tion, training,  and  conditions  at  a  New 
Hampshire  institution  for  mentally  re- 
tarded persons.  The  court  commented: 


The  pattern  of  excluding  entire  cate- 
gories of  retarded  residents,  such  as 

117  45  C.F.R.  pt.  84,  app.  A.,  p.  297  (1982).  See  also 
Lau  v.  Nichols,  414  U.S.  563  (1974)  and  chap.  5  in 
the  section  entitled  "Legal  Implications  of  the 
Spectrum  and  Social  Contact  Principles." 


122 


the  profoundly  mentally  retarded 
and  the  multiple  handicapped,  from 
entire  categories  of  services  and  ac- 
tivities (e.g.  [education  and  train- 
ing], recreational  trips  off  campus, 
etc.),  without  first  accommodating 
them  with  appropriate  auxiliary 
aids  and  without  then  making  an 


individualized  determination  of 
their  ability  to  participate,  must 
cease.  .  .  .Laconia  State  School 
(LSS)  need  not  make  each  of  its 
existing  facilities  or  every  [part]  of 
an  existing  facility  accessible  to  or 
usable  by  all  handicapped  persons; 
nevertheless,  all  of  the  programs 
and  activities  at  LSS,  when  viewed 
in  their  entirety,  must  be  readily 
accessible  to  all  handicapped  per- 
sons. .  .  .LSS  cannot,  therefore,  ab- 
solutely deny  certain  services  to  in- 
dividuals without  providing  them 
equivalent  services.  For  example, 
profoundly  retarded  residents  must 
be  afforded  [education  and  training] 
services  to  the  same  extent  as  mildly 
retarded  residents  even  though  the 
teaching  methods  might  be  differ- 
ent.118 

The  equivalence  standard  encom- 
passes a  continuum  of  levels  of  equality 
by  which  accommodations  may  be 
judged.  At  one  end  are  accommodations 

118  522  F.  Supp.  at  217;  45  C.F.R.  §84.22(a)  (1982). 
Equivalence  is  also  embodied  in  section  504 
regulations  requiring  architectural  accessibility. 
28  C.F.R.  §41.57(a)  (1982). 

119  See  this  chapter  under  the  section  entitled 
"Incidental-Essential  Distinction." 

120  Even  where  possible,  identical  treatment  is 
not  always  required  by  the  law  if  it  would  require 
changes  in  the  essence  of  a  program,  require 
massive  modifications,  or  be  too  costly.  See  the 
section   in   this   chapter   entitled    "Limitations 


that  permit  handicapped  people  to  par- 
ticipate fully  and  identically  in  opportu- 
nities provided  others.  For  example,  a 
telephone  amplification  device  might 
permit  a  hearing-impaired  person  to 
perform  all  of  the  duties  of  a  telephone 
operator.  At  the  other  extreme  are  op- 
portunities that  provide  some  degree  of 
roughly  comparable  benefit,  such  as 
those  provided  by  some  education  and 
training  programs  for  mentally  retarded 
persons.  Equivalence  may  also  be 
achieved  by  accommodations  that  permit 
a  handicapped  person  to  perform  "essen- 
tial functions"  or  meet  "essential  eligi- 
bility requirements"  of  a  program  or 
activity  instead  of  equal  participation  in 
all  incidental  facets  of  a  program  or 
activity.119 

Equivalence  varies  according  to  what 
accommodations  are  possible  and  reason- 
able. Where  a  change  in  some  rule  or 
policy  or  the  rendering  of  a  reasonable 
accommodation  can  produce  identical 
treatment  and  identical  results  for  quali- 
fied handicapped  persons,  equivalence 
may  require  such  identical  treatment.120 
Where  identical  treatment  is  not  appro- 
priate, equivalence  requires  reasonable 
accommodation  to  produce  equally  effec- 
tive participation  with  commensurate 
results.  And  in  some  circumstances, 
where  neither  of  the  prior  levels  is 
possible  or  appropriate,  equivalence  may 

Upon  the  Obligation  to  Accommodate."  See  also 
Board  of  Educ.  v.  Rowley,  102  S.Ct.  3034,  3042-43 
(1982).  The  degree  of  equivalence  beyond  that 
which  is  minimally  required  may  frequently  be  a 
matter  at  the  discretion  of  the  program.  Robert  A 
Maroldo,  Jr.,  "MSPB  Review  of  Handicap  Dis- 
crimination Cases,"  Federal  Merit  Systems  Re- 
porter Perspective,  vol.  82,  no.  6  (July  1982),  pp. 
V38-39;  cf  Espino  v.  Bestiero,  520  F.  Supp.  905, 
911-13  (S.D.  Tex.  1981). 


123 


consist  of  a  roughly  comparable  opportu- 
nity. 

Equal  opportunity  for  handicapped 
people  has  many  meanings  depending 
upon  the  capabilities  of  the  people,  the 
program  or  activities  in  which  they  wish 
to  participate,  and  the  existing  re- 
sources. The  concept  of  equivalence  rec- 
ognizes that  fact  and  acts  as  a  bench- 
mark by  which  the  need  for  and  effec- 
tiveness of  accommodations  in  particular 
circumstances  may  be  judged. 

Limitations  Upon  the  Obligation 
to  Accommodate 

The  legal  requirements  of  nondiscrimi- 
nation and  reasonable  accommodation 
are  limited.  These  limitations  reflect  the 
compromise  struck  between  the  one  ex- 
treme of  completely  ignoring  that  society 
is  primarily  structured  for  people  whose 
abilities  fall  in  the  normal  range  and  the 
other  extreme  of  doing  everything  possi- 
ble, no  matter  how  costly  or  drastic,  to 
permit  full  participation. 

Incidental-Essential  Distinction 

Limitations  on  the  duty  to  accommo- 
date flow  from  the  central  concept  that 
essential  program  components  are  to  be 
preserved.  The  Supreme  Court  recog- 
nized this  principle  in  Southeastern  Com- 
munity College  v.  Davis.  As  noted  earlier 
in  this  chapter,  the  Court  referred  to 
program  components  and  requirements 
in  terms  such  as  essential,  necessary, 
and  legitimate  to  determine  the  reason- 
ableness of  Davis's  requests  for  accom- 
modation. The  implication  of  the  Court's 
analysis  is  that  some  program  functions 


121  See  chap.  5  in  the  section  entitled  "The  Role 
of  Social  Context."  The  incidental-essence  dis- 
tinction has  also  been  made  with  reference  to 


and  program  requirements  are  essential, 
while  others  may  be  only  incidental.  The 
incidental-essential  distinction  is  also 
consistent  with  the  premise  that  there 
are  frequently  equally  effective  ways  in 
which  tasks  and  activities  may  be  re- 
structured to  achieve  similar  objec- 
tives.121 

Program  components  or  tasks  that  are 
incidental  may  logically  be  waived  or 
altered  to  allow  a  handicapped  person  to 
participate  unless  such  modifications 
run  afoul  of  other  restrictions  placed  on 
the  duty  to  make  accommodations.  Es- 
sential components  or  tasks,  however, 
must  be  preserved,  and  only  accommoda- 
tions that  permit  their  performance  may 
be  legally  required. 

Determining  what  aspects  of  a  pro- 
gram are  essential  and  what  aspects  are 
incidental  is  not  always  easy.  Accommo- 
dations that  imperil  the  viability  of  a 
program  certainly  interfere  with  one  or 
more  essential  elements,  as  do  accommo- 
dations that  alter  the  central  program 
purpose.  The  Court  in  Davis  used  this 
distinction  between  the  essential  and  the 
incidental  to  suggest  both  quantitative 
and  qualitative  limitations  on  the  duty  to 
make  accommodation. 

Davis  prohibited  requiring  "funda- 
mental alterations"  in  the  nature  of  a 
program  and  "undue  financial  and  ad- 
ministrative burdens"  in  order  to  pre- 
serve the  viability  and  achievement  of 
program  objectives.  There  has  been  little 
judicial  discussion  of  undue  administra- 
tive  burdens   imposed   by   accommoda- 

making  mass  transit  accessible  to  handicapped 
people.  See  Dopico  v.  Goldschmidt,  687  F.2d  644, 
653  (2d  Cir.  1982). 


124 


tions.  Undue  financial  burdens  are  dis- 
cussed below  as  a  cost  consideration.122 
The   issue   of  fundamental    alterations 
has,  however,  been  the  subject  of  much 
litigation. 

Fundamental  Alterations  Not 
Required 

Davis  and  subsequent  decisions  make 
clear  that  neither  fundamental  altera- 
tions,123 "massive"  changes,124  nor  "sub- 
stantial modifications"125  are  required 
by  section  504.  Such  changes  in  a  pro- 
gram would  inevitably  change  its  nature; 
section  504  does  not  require  alterations 
that  endanger  a  program's  viability126  or 
"jeopardize  its  effectiveness."127  Exclud- 
ing fundamental  alterations  from  the 
scope  of  the  reasonable  accommodation 
requirement  ensures  that  the  program 
or  activity  may  achieve  the  benefits  it  is 
intended  to  achieve.128  Nondiscrimina- 
tion also  does  not  require  such  substan- 


122  The  analysis  of  administrative  burdens  con- 
cerns the  elimination  of  certain  categorical  disa- 
bility classifications  contained  in  statutes  and 
regulations  that  exclude  handicapped  people  as  a 
class  on  the  basis  of  their  disabilities.  See  this 
chapter  in  the  section  entitled  "Exclusionary 
Classification"  and  Costner  v.  United  States,  555 
F.  Supp.  146,  150  (E.D.  Mo.  1982).  See  also 
Weinberger  v.  Salfi,  422  U.S.  749  (1975). 

123  Southeastern  Community  College  v.  Davis, 
442  U.S.  at  410. 

124  Dopico  v.  Goldschmidt,  687  F.2d  644,  653  (2d 
Cir.  1982);  American  Pub.  Transit  Ass'n  v.  Lewis, 
655  F.2d  1272, 1278  (D.C.  Cir.  1981). 

125  Southeastern  Community  College  v.  Davis, 
442  U.S.  at  405,  411  n.  10  ("substantial  changes"), 
413. 

126  New  Mexico  Ass'n  of  Retarded  Citizens  v. 
State  of  N.M.,  678  F.2d  847,  855  (10th  Cir.  1982). 
One  commentator  has  suggested  that  a  "program 
impairment"  standard  be  adopted  to  measure  the 
limits  of  the  duty  to  accommodate.  Note,  "Ac- 
commodating the  Handicapped:  The  Meaning  of 
Discrimination  Under  Section  504,"  N.Y.U.  L. 
Rev.,  vol.  55  (1980),  pp.  881,  900-02. 


tial  modifications  as  would,  in  effect, 
create  a  new  program.129 

Cost  Limitations 

In  passing  the  Rehabilitation  Act  of 
1973,  Congress  explicitly  recognized  that 
accommodations  to  avoid  discrimination 
might  involve  some  compliance  costs  and 
established  limited  programs  to  help 
bear  them.  Section  302  of  the  Rehabilita- 
tion Act  authorizes  grants  to  State  units 
to  provide  "such  information  and  techni- 
cal assistance  [including  support  person- 
nel such  as  interpreters  for  the  deaf]  as 
may  be  necessary  to  assist  those  entities 
in  complying  with  this  chapter  [of  the 
Act],  particularly  of  Section  794  of  this 
title."130 

The  issue  of  cost  limitations  has  prov- 
en particularly  difficult  with  respect  to 
handicap  antidiscrimination  law.  One 
element  of  confusion  is  added  by  the 
failure  to  distinguish  between  cost  as  a 
limitation  on  legal  rights  and  cost  as  a 

127  Rhode  Island  Handicapped  Action  Comm.  v. 
Rhode  Island  Pub.  Transit  Auth.,  549  F.  Supp. 
592,  611  (D.R.I.  1982). 

128  Southeastern  Community  College  v.  Davis, 
442  U.S.  at  413. 

129  Doe  v.  Colautti,  592  F.2d  704,  707-09  (3rd  Cir. 
1979);  Turillo  v.  Tyson,  535  F.  Supp.  577,  587 
(D.R.I.  1982);  Lynch  v.  Maher,  507  F.  Supp.  1268, 
1280  (D.  Conn.  1981);  Colin  K.  v.  Schmidt,  536  F. 
Supp.  1375,  1388  (D.R.I  1982);  Rhode  Island 
Handicapped  Action  Comm.  v.  Rhode  Island  Pub. 
Transit  Auth.,  549  F.  Supp.  592,  607  (D.R.I.  1982) 

130  29  U.S.C.  §775(a)(2)  (Supp.  V  1981).  In 
referring  to  this  section,  the  Supreme  Court 
commented  in  Davis  that  "this  provision  recog- 
nizes that  on  occasion  the  elimination  of  discrim- 
ination might  involve  some  costs.  .  .  ."  442  U.S. 
at  411  n.  10.  In  addition,  section  506  authorizes 
some  financial  assistance  for  the  removal  of 
architectural,  transportation,  and  communica- 
tion barriers  for  certain  programs.  29  U.S.C. 
§794b  (Supp.  V  1981). 


125 


consideration  in  choosing  among  effec- 
tive remedies. 

Civil  rights  protections  generally  are 
not  limited  by  cost  considerations.  For 
example,  segregated  public  schools  are 
unlawful  and  one  is  entitled  to  a  remedy 
that  eliminates  all  vestiges  of  a  dual 
school  system.131  Similarly,  all  handi- 
capped children  have  a  right  to  a  free 
appropriate  public  education  in  the  least 
restrictive  environment.  This  includes 
educating  handicapped  children  with 
nonhandicapped  children  to  the  maxi- 
mum extent  appropriate.132  That  right  is 
not  limited  by  cost.133  Cost,  however, 
comes  into  play  when  considering  how 
both  sets  of  rights  will  be  achieved.  To 
end  segregation,  school  districts  need  not 
build  new  schools  in  minority  or  white 
neighborhoods;  they  may  use  student 
reassignment  and  transportation  to  rem- 
edy the  violation.134  Similarly,  in  choos- 
ing among  equally  effective  accommoda- 
tions, one  may  consider  which  accommo- 
dation is  the  most  economical  in  provid- 
ing an  appropriate  education  in  the 
normal  education  environment.135  An- 
tidiscrimination law  makes  a  sharp  dis- 
tinction between  what  conduct  is  unlaw- 
ful and  what  actions  are  required  as  a 
remedy.  When,  as  frequently  happens,  a 
choice  of  remedies  is  available  to  achieve 
the  right,  the  choice  to  be  made  depends 
upon  the  particular  circumstances.  In 
the  end,   however,   a   remedy  must  be 

131  Swann  v.  Charlotte-Mecklenburg  Bd.  of 
Educ,  402  U.S.  1, 15-18,  29-31  (1971). 

132  jf  "related  services"  are  necessary  to  achieve 
these  rights,  such  services  must  be  provided  and 
cost  is  not  a  defense.  See  generally  chap.  3  in  the 
section  entitled  "Education  for  All  Handicapped 
Children  Act." 

133  See,  e.g.,  Hessler  v.  State  Bd.  of  Educ.  of  State 
of  Md.,  700  F.2d  134,  138-39  (4th  Cir.  1983)  (fact 
that  private  school  is  less  costly  does  not  make  it 
more  appropriate). 


chosen  appropriate  to  the  scope  of  the 
violation.136 

Under  handicap  discrimination  law, 
however,  costs  may  limit  the  duty  of  an 
employer  to  make  reasonable  accommo- 
dation. The  courts,  EEOC,  the  Office  of 
Federal  Contract  Compliance  Programs 
(OFCCP),  and  HHS  articulate  the  con- 
cept of  "undue  hardship"  as  a  defense  for 
failing  to  accommodate  in  the  employ- 
ment context. 

The  HHS  employment  regulations  de- 
fine undue  hardship  as  follows: 


In  determining.  .  .whether  an  ac- 
commodation would  impose  an  un- 
due hardship  on  the  operation  of  a 
recipient's  program,  factors  to  be 
considered  include: 


(1)  The  overall  size  of  the  recipi- 
ent's program  with  respect  to  the 
number  of  employees,  number  and 
type  of  facilities,  and  size  of  budget; 


(2)  The  type  of  the  recipient's  oper- 
ation, including  the  compositon  and 
structure  of  the  recipient's  work- 
force; and 


(3)     The    nature    and    cost   of  the 
accommodation  needed.137 

134  Swann  v.  Charlotte-Mecklenburg  Bd.  of 
Educ,  402  U.S.  1,  25-31  (1971) 

135  Espino  v.  Besteiro,  520  F.  Supp.  905,  909  (S.D. 
Tex.  1981).  But  cf.  Tatro  v.  State  of  Tex.,  625  F.2d 
557,  564  n.  17  (5th  Cir.  1981). 

136  See,  e.g.,  Dopcio  v.  Goldschmidt,  687  F.2d  644, 
650  (2d  Cir.  1982). 

137  45C.F.R.  §84. 12(c)  (1982). 


126 


Similarly,  OFCCP's  regulations  permit 
consideration  of  business  necessity,  ini- 
tial cost,  and  continuing  expenses  of  the 
accommodation. 138 

The  undue  hardship  defense  limits  the 
right  to  accommodation  because  if  none 
of  the  possible  accommodations  produces 
an  individualized  opportunity  without 
imposing  an  undue  hardship,  the  right  to 
individualized  opportunity  is  considered 
to  be  unachievable  in  that  context,  and 
the  employer  has  not  practiced  unlawful 
discrimination.  This  limitation  on  the 
right  appropriately  requires  not  only 
that  the  handicapped  person  be  capable 
of  performing  the  essential  functions  of 
the  position,  but  also  that  the  employer 
be  able  to  benefit  from  its  employee's 
work.  The  law  also  calls  for  cost  to  be 
used  as  a  factor  in  choosing  among 
remedies.  In  accommodating  the  needs  of 
handicapped  Federal  employees  or  appli- 
cants, the  Federal  courts  are  statutorily 
permitted  to  take  into  account:  "the 
reasonableness  of  the  cost  of  any  neces- 
sary work  place  accommodation  and  the 
availability  of  any  alternatives  therefor 


138  41  C.F.R.  §60-741.6(d)  (1982). 

139  29  U.S.C.  §794a(a)(l)  (Supp.  V  1981). 

140  See  Bey  v.  Bolger,  540  F.  Supp.  910,  926-27 
(E.D.  Pa.  1982)  (light  duty  assignment  in  viola- 
tion of  collective  bargaining  agreement  consti- 
tutes undue  hardship);  Tatro  v.  State  of  Tex.,  625 
F.2d  557,  564  n.  17  (5th  Cir.  1980)  (provision  of 
clean  intermittent  catheterization  to  school  girl 
rendered  her  capable  of  benefiting  from  regular 
classroom  instruction  and  did  not  constitute 
undue  hardship,  although  kidney  dialysis  might). 

141  45  C.F.R.  §§84. 12(c)  (1982);  Dopico  v.  Goldsch- 
midt,  687  F.2d  644,  650  (2d  Cir.  1982). 

142  Jones  v.  Illinois  Dep't  of  Rehabilitation,  689 
F.2d  724,  729  (7th  Cir.  1982). 

143  New  Mexico  Ass'n  for  Retarded  Citizens  v. 
State  of  N.M.,  678  F.2d  847,  853  (10th  Cir.  1982). 
Courts   have   also   made   this   distinction   with 


or  other  appropriate  relief  in  order  to 
achieve  an  equitable  result."139 

The  courts  have  not  generally  used 
this  right-remedy  distinction  in  analyz- 
ing how  costs  should  be  considered  in 
different  contexts.  In  addition,  the  analy- 
sis used  by  different  courts  has  been 
inconsistent.140  Nonetheless,  several  key 
considerations  have  emerged  in  recent 
decisions.  As  the  HHS  regulations  note, 
costs  cannot  be  considered  in  a  vacuum 
but  must  be  viewed  in  light  of  the 
purpose,  nature,  and  resources  of  a  par- 
ticular program.141 

Where  Federal  funds  are  received  with 
the  specific  condition  that  accommoda- 
tions are  to  be  made  to  permit  handi- 
capped people  to  participate  in  areas 
such  as  rehabilitation142  or  education,143 
the  defense  of  undue  financial  hardship 
is  weaker.144  In  those  instances,  accom- 
modation that  calls  for  reallocating  mis- 
spent funds  or  using  unspent  funds  is  not 
considered  undue.145 

Costs  of  accommodations  should  also 
be  considered  in  light  of  the  number  of 
people  served  and  the  benefits  gained.  In 

respect  to  making  mass  transit  accessible  to 
handicapped  people.  See  Dopico  v.  Goldschmidt, 
687  F.2d  644,  650  (2d  Cir.  1982). 

144  The  U.S.  Supreme  Court  has  given  contradic- 
tory signals  bearing  on  this  issue.  In  Pennhurst 
State  School  and  Hosp.  v.  Halderman,  451  U.S.  1, 
31-32  (1981),  the  Court  opined  that  States  might 
not  be  required  to  spend  their  own  funds  to 
improve  their  institutions  for  the  mentally  re- 
tarded. But,  in  Campbell  v.  Kruse,  434  U.S.  808 
(1977),  the  Court  directed  a  district  court  to 
consider  on  remand  whether  a  State  was  re- 
quired under  section  504  to  provide  additional 
funds  in  order  to  finance  its  special  education 
system  adequately. 

145  Dopico  v.  Goldschmidt,  687  F.2d  644,  650  (2d 
Cir.  1982). 


127 


the  context  of  special  education,  one 
court  of  appeals  has  observed: 

[T]he  greater  the  number  of  children 
needing  the  particular  special  edu- 
cation service,  the  more  likely  that 
failure  to  provide  the  service  consti- 
tutes discrimination.  This  is  so  be- 
cause the  more  children  in  need  of 
the  service,  the  more  the  benefits  of 
that  service  outweigh  its  cost.146 

One  court  has  suggested  that  a  realistic 
assessment  of  the  costs  of  accommoda- 
tion must  look  beyond  the  cost  of  the 
accommodation  itself  and  include  an 
assessment  of  the  costs  to  handicapped 
persons  if  the  accommodation  is  not 
made  and  the  benefits  to  handicapped 
persons  if  the  accommodation  is  success- 
ful.147 The  most  extensive  analysis  and 
application  of  these  cost  considerations 
has  occurred  in  case  law  dealing  with 
accessible  public  transportation  issues  as 
discussed  in  this  chapter  in  the  section 
entitled  "Removing  Architectural, 
Transportation,  and  Communication 
Barriers." 

Differing  Standards  in  Differing 
Societal  Areas 

As  with  the  principle  of  individualiza- 
tion, the  distinction  between  essential,  as 
opposed  to  incidental,  program  elements 
leads  to  differing  legal  standards  for 
different  societal  areas.  The  legal  rule 
against  fundamental  alterations  that  im- 
pinge on  essential  program  components 
or  purposes  or  impose  undue  financial 
burdens  cannot  be  readily  applied  with- 

146  New  Mexico  Ass'n  for  Retarded  Citizens  v. 
State  of  N.M.,  678  F.2d  847,  854  (10th  Cir.  1982). 

147  Rhode  Island  Handicapped  Action  Comm.  v. 

Rhode  Island  Pub.  Transit  Auth.,  549  F.  Supp. 

592,  611-14  (D.R.I.  1982). 
128 


out  analyzing  the  particular  societal 
area  and  its  effect  on  the  program  or 
activity  at  issue.  Concerning  the  rele- 
vance of  context  to  determining  limita- 
tions on  the  duty  to  make  accommoda- 
tions, one  district  court  has  noted: 

[T]he  Education  of  the  Handicapped 
Act  made  it  clear  that  Congress 
recognized  that,  far  from  being  "un- 
qualified" for  a  public  education,  a 
handicapped  child  had  a  right  to  an 
appropriate  public  education.  Thus, 
extensive  modifications  that  might 
be  "substantial"  in  other  contexts 
may  be  reasonable  efforts  to  educate 
handicapped  children.148 

On  the  other  hand,  in  contexts  such  as 
employment,  excessive  costs  may  be  a 
defense  to  the  duty  to  render  reasonable 
accommodation.  In  regard  to  a  handi- 
capped child's  right  to  a  free  appropriate 
public  education,  as  discussed  above,  cost 
is  only  a  consideration  in  choosing 
among  alternative  ways  of  satisfying  the 
obligation  and  is  not  a  defense  to  the 
right  itself. 

In  each  particular  context,  the  deter- 
mination of  what  accommodations  are 
legally  mandated  is  a  process  of  weighing 
various  factors,  including  the  practical 
feasibility  of  a  proposed  accommodation, 
the  degree  to  which  it  will  achieve  the 
participation  of  the  handicapped  person, 
the  number  of  other  persons  who  will 
benefit  from  the  accommodation,  the 
costs  of  the  accommodation,  the  degree 
to  which  it  will  inconvenience  others,  the 
availability   of  alternative   methods   of 

148  Jose  P.  v.  Ambach,  557  F.  Supp.  1230,  1235 
(E.D.  N.Y.  1983). 


accommodation,  the  safety  of  the  pro- 
posed accommodation,  and  the  availabili- 
ty of  financial  and  other  resources  to 
assist  in  making  the  accommodation. 

Exclusionary  Classifications 

Sometimes  the  process  of  individually 
matching  persons  with  opportunities 
through  reasonable  accommodation  is 
not  reached  because  exclusionary  classi- 
fications disqualify  entire  classes  or  sub- 
classes of  handicapped  people.  As  the 
Supreme  Court  stated  in  Southeastern 
Community  College  v.  Davis:  "[M]ere 
possession  of  a  handicap  is  not  a  permis- 
sible ground  for  assuming  an  inability  to 
function  in  a  particular  context."149  For 
this  reason,  courts  have  carefully  scru- 
tinized and  frequently  struck  down  tradi- 
tional handicap  classifications.  Courts 
have  questioned  or  invalidated  as  overly 
broad  exclusionary  classifications  explic- 
itly based  on  blindness,150  epilepsy,151 
mental  retardation,152  mental  illness,153 
and  multiple  sclerosis.154 

Exceptions  to  this  general  rule  in 
regard  to  remedial  programs,  safety  is- 
sues, and  administrative  burdens  will  be 
discussed  below.  Where  those  exceptions 
do  not  apply,  a  blanket  exclusion  based 
on  a  traditional  disability  status  category 

149  442  U.S.  at  405. 

150  Gurmankin  v.  Costanzo,  556  F.2d  184,  187-88 
(3rd  Cir.  1977)  (due  process).  Cf.  Coleman  v. 
Darden,  595  F.2d  533,  536-38  (10th  Cir.  1979), 
cert,  denied,  444  U.S.  927  (1979)  (due  process). 

151  Duran  v.  City  of  Tampa,  430  F.  Supp.  75,  78 
(M.D.  Fla.  1977)  (denying  preliminary  injunc- 
tion), 451  F.  Supp  954,  955  (M.D.  Fla.  1976) 
(granting  injunction);  Drennon  v.  Philadelphia 
General  Hosp.,  428  F.  Supp.  809,  814-16  (E.D.  Pa. 
1977). 

152  Garrity  v.  Galen,  522  F.  Supp.  171,  214-15 
(D.N.H.  1981). 

153  Doe  v.  New  York  Univ.,  666  F.2d  761,  779,  n. 
10  (2d.  Cir.  1981)  (dicta). 


should,  in  theory,  be  eliminated  unless 
there  is  a  one-to-one  correlation  with 
membership  in  that  status  category  and 
the  functional  inability  to  meet  neces- 
sary requirements.  Few  courts,  however, 
have  directly  confronted  this  issue  as  yet. 
The  hypothetical  example  of  the  prohibi- 
tion against  blind  bus  drivers  is  one 
situation  where  the  interaction  between 
a  disability  category  and  the  actual, 
essential  job  requirements  would  pre- 
clude all  members  of  a  disability  cate- 
gory group  from  participating  safely  in  a 
position.155  The  U.S.  Supreme  Court's 
decision  in  Davis  can  be  considered  as 
involving  a  blanket  exclusion  rooted  in 
interests  of  safety.  In  this  context,  the 
Davis  decision  analyzes  whether  hear- 
ing-impaired people  who  can  only  under- 
stand speech  through  lipreading  are  in- 
capable of  safely  performing  the  duties  of 
registered  nurses.156 

Selection  criteria,  in  the  sense  of  stat- 
ed requirements  that  purport  to  measure 
physical  or  mental  abilities  or  the  ability 
to  perform  certain  tasks  or  activities,157 
may  also  be  discriminatory  if  they  un- 
necessarily exclude  people  on  the  basis  of 
their  handicap.  The  validity  of  such 
selection  criteria  is  not  susceptible  to 
easy  analysis,  and  the  law  is  not  yet 

154  Pushkin  v.  Regents  of  Univ.  of  Colo.,  658  F.2d 
1372,  1385  (10th  Cir.  1981). 

155  45  C.F.R.  pt.  84,  app.  A  at  296  (1981). 

156  The  Court  in  Davis,  however,  went  beyond 
the  blanket  classification  to  consider  Davis'  indi- 
vidual abilities  within  the  context  of  the  particu- 
lar clinical  training  program  involved.  442  U.S. 
at  407.  See  this  chapter  in  the  section  entitled 
"Southeastern  Community  College  v.  Davis:  Rea- 
sonable Accommodation  as  Part  of  Nondiscrimi- 
nation Law." 

157  Some  selection  criteria  are  stated  negatively; 
they  check  for  physiological  "irregularities"  in 
the  belief  that  such  measurements  correlate  with 
ability. 


129 


settled.  Although  individualization  is  the 
touchstone  in  this  area,  existing  legal 
standards  do  not  necessarily  require  that 
a  program  assess  the  particular  ability  of 
each  handicapped  person  to  satisfy  es- 
sential task  or  activity  requirements.  If 
the  program  has  established  selection 
criteria  that  are  sufficiently  related  to  its 
essential  requirements,  it  may  not  have 
to  assess  individual  abilities.158 

Federal  regulations  require  employ- 
ment selection  criteria  to  be  job  related 
under  certain  circumstances.  EEOC's 
section  501  regulations  state: 


An  agency  may  not  make  use  of  any 
employment  test  or  other  selection 
criterion  that  screens  out  or  tends  to 
screen  out  qualified  handicapped 
persons  or  any  class  of  handicapped 
persons  unless  (1)  the  test  score  or 
other  selection  criterion,  as  used  by 
the  agency,  is  shown  to  be  job-relat- 


158  However,  while  an  employer's  selection  crite- 
ria may  be  legally  valid  and  not  require  individu- 
al assessments  if  sufficiently  job  related,  a  handi- 
capped person  who  is  excluded  by  such  criteria 
may  still  be  "qualified"  under  Federal  regula- 
tions if  the  individual  demonstrates  an  ability  to 
perform  the  essential  functions  of  the  job.  In  such 
circumstances,  the  employer's  selection  criteria 
would  not  be  illegal,  but  their  application  exclud- 
ing the  "qualified"  handicapped  individual  would 
be  prohibited  discrimination  under  the  Federal 
regulations.  See,  Prewitt  v.  United  States  Postal 
Service,  662  F.2d  292,  307  (5th  Cir.  1981);  Costner 
v.  United  States,  555  F.  Supp.  146,  150  (E.D.  Mo. 
1982).  See  also  discussion  in  this  chapter  in  the 
section  entitled  "Defining  Qualified  Handicapped 
Individuals."  But  cf.  Coleman  v.  Darden,  595  F.2d 
533,  536-37  (10th  Cir.  1979),  cert,  denied,  444  U.S. 
927  (1979). 

159  29  C.F.R.  §1613.705(a)  (1982).  Similar  lan- 
guage is  used  by  the  HHS  employment  regula- 
tions, 45  C.F.R.  §84. 13(a)  (1982).  The  HHS  regula- 
tions appear  to  create  a  very  stringent  standard 
of  job  relatedness  for  upholding  selection  criteria 
that  tend  to  screen  out  handicapped  persons. 


ed  to  the  position  in  question,  and  (2) 
alternative  job-related  tests  or  crite- 
ria that  do  not  screen  out  or  tend  to 
screen  out  as  many  handicapped 
persons  are  not  shown.  .  .to  be 
available.  . 


159 


OFCCP's  section  503  regulations  employ 
the  same  concept  with  slightly  different 
language: 


The  contractor  shall  provide  in  its 
affirmative  action  program,  and 
shall  adhere  to  the  schedule  for  the 
review  of  all  physical  or  mental  job 
qualification  requirements,  to  en- 
sure that,  to  the  extent  qualification 
requirements  tend  to  screen  out  qua- 
lified handicapped  individuals,  they 
are  job  related  and  consistent  with 
business  necessity  and  the  safe  per- 
formance of  the  job.160 

HHS  has  indicated  that  job  relatedness  is  equiva- 
lent to  "showing  that  a  particular  mental  or 
physical  characteristic  is  essential."  45  C.F.R.  pt. 
84,  app.  A.,  subpt.  A,  no.  5  at  296  (1982).  In 
contexts  other  than  employment,  the  HHS  regu- 
lations similarly  require  eligibility  requirements 
that  disadvantage  handicapped  persons  to  be 
"essential."  45  C.F.R.  §84.3(k)(4)  (1982);  45  C.F.R. 
pt.  84,  app.  A,  subpt.  A,  no.  5  at  297  (1982) 
(technical  standards).  The  government-wide  sec- 
tion 504  guidelines  prohibit  "criteria  or  methods 
of  administration.  .  .[t]hat  have  the  effect  of 
subjecting  qualified  handicapped  persons  to  dis- 
crimination on  the  basis  of  handicap."  28  C.F.R. 
§41.51(b)(l)(vii)(3)(i)  (1982).  Handicapped  people 
are  also  protected  from  criteria  or  methods  of 
administration  that  "have  the  purpose  or  effect 
of  defeating  or  substantially  impairing  accom- 
plishment of  the  objectives  of  the  recipient's 
program  with  respect  to  handicapped  persons." 
Id.,  §41.51(b)(l)(vii)(3)(ii)  (1982). 
160  41  C.F.R.  §60-741.5(c)(l)  (1982).  Further,  "the 
requirements  shall  be  related  to  the  specific  job 
or  jobs  for  which  the  individual  is  being  consid- 
ered and  shall  be  consistent  with  business  neces- 


130 


These  regulations  adopt  the  "disparate 
impact"  standard  for  determining  dis- 
crimination.161 This  standard  was  used 
by  the  U.S.  Supreme  Court  in  construing 
Title  VII  of  the  Civil  Rights  Act  of  1964, 
prohibiting  discrimination  in  employ- 
ment on  the  basis  of  race,  color,  national 
origin,  sex,  and  religion.162 

In  Bentivegna  v.  U.S.  Department  of 
Labor,163  the  United  States  Court  of 
Appeals  for  the  Ninth  Circuit  recently 
ruled  illegal  a  City  of  Los  Angeles  em- 
ployment practice  that  excluded  people 
with  diabetes  mellitus  (unless  their  con- 
dition was  "controlled"  at  a  certain  blood 
sugar  level)  from  all  city  jobs.164  This 
standard  was  not  connected  to  any  par- 
ticular job  or  set  of  job  tasks.165  Al- 
though the  traditional  disability  status 
category  "diabetic"  was  used  to  deter- 
mine who  was  tested  for  blood  sugar 


sity  and  the  safe  performance  of  the  job.  The 
contractor  shall  have  the  burden  to  demonstrate 
that  it  has  complied  with  the  requirement  of  this 
paragraph."  Id.  §60-741. 5(c)(2)  (1982). 

161  See  45  C.F.R.  pt.  84,  app.  A  at  300-01  (1982) 
(tests  and  selection  criteria).  The  appropriateness 
of  applying  legal  standards  developed  in  one  area 
of  civil  rights  law  to  another  area  is  discussed 
more  fully  in  chap.  7. 

162  Griggs  v.  Duke  Power  Co.,  401  U.S.  424  (1971); 
42  U.S.C.  §§2000e-2000e(17)  (1976  and  Supp.  V 
1981). 

163  694  F.2d  619  (9th  Cir.  1982).  Bentivegna 
sought  review  of  the  Secretary  of  Labor's  final 
decision  that  he  had  not  been  discriminated 
against  by  the  city  of  Los  Angeles,  a  Federal 
grantee  under  a  Department  of  Labor-adminis- 
tered CETA  program. 

164  Id.  at  620-21.  The  city  apparently  did  not 
have  a  set  number  but  a  range.  Id.  at  620. 

165  Id.  at  620-21,  n.  1. 

166  Id.  at  622. 

167  Id,  at  622-23.  One  doctor  testified  for  the  city 
that  "all  diabetics  are  subject  to  progressive 
vascular  and  neurological  problems  that  can 
elevate  the  risks  associated  with  injury."  Id.  at 
622.  As  the  court  notes,  "If,  as  Dr.  Hanks  stated, 


levels,  the  court  properly  focused  on  the 
legality  of  selection  criteria  requiring 
"controlled"  blood  sugar  levels. 

The  city  defended  its  employment 
practice  by  contending  that  uncontrolled 
diabetics  suffered  a  greater  risk  of  future 
injury  and  long-term  health  problems.166 
The  court  rejected  both  rationales,  ruling 
that  the  evidence  showed  neither  that 
diabetics  with  low  blood  sugar  levels 
were  less  likely  to  be  injured  or  have 
fewer  long-term  health  problems  nor 
that  diabetics  with  high  blood  sugar  were 
more  likely  to  be  injured  or  have  greater 
long-term  health  problems.167 

The  court's  rationale  for  strictly  con- 
struing the  job  relationship  and  business 
necessity  standard  is  informative: 

The  Rehabilitation  Act,  taken  as  a 
whole,  mandates  significant  accom- 

the  damage  is  done  for  all  long  term  diabetics, 
the  City's  restrictions  would  be  seriously  under- 
inclusive."  Id.  The  court  does  not  directly  address 
the  implication  of  its  statement,  that  the  city 
might  be  able  to  justify  a  classification  that  was 
still  broader — no  diabetics  allowed  on  the  city's 
payroll.  The  court  suggests  that  such  a  blanket 
disability  classification  would  also  be  unlawful: 
[Allowing  remote  concerns  to  legitimize  dis- 
crimination against  the  handicapped  would 
vitiate  the  effectiveness  of  section  504  of  the 
Act.   Potentially  troublesome  health  prob- 
lems will  affect  a  large  proportion  of  the 
handicapped   population.   Consistent  atten- 
dance and  an  expectation  of  continuity  will 
be  important  to  any  employer.  Such  consid- 
erations cannot  provide  the  basis  for  discrim- 
inatory job  qualifications  unless  they  can  be 
connected  directly  to  "business  necessity"  or 
safe  performance  of  the  job. 


Id.  The  court  might  also  have  argued  that 
Congress  has  made  a  policy  determination  that  to 
the  extent  there  is  greater  future  risk  to  self 
(Bentivegna  posed  no  danger  to  others),  that  risk 
will  be  accepted  as  a  reasonable  price  for  handi- 
capped people's  full  participation  in  society. 


131 


modation  for  the  capabilities  and 
conditions  of  the  handicapped.  Blan- 
ket requirements  must  therefore  be 
subject  to  the  same  rigorous  scrutiny 
as  any  individual  decision  denying 
employment  to  a  handicapped  per- 
son. .  .  .The  importance  of  preserv- 
ing job  opportunities  for  the  handi- 
capped sets  a  high  standard  for  the 
effectiveness  of  job  qualifications 
that  adversely  affect  the  handi- 
capped. The  regulation  makes  con- 
sistency with  business  necessity  an 
independent  requirement,  and  the 
courts  must  be  wary  that  business 
necessity  is  not  confused  with  mere 
expediency.  If  a  job  qualification  is 
to  be  permitted  to  exclude  handi- 
capped individuals,  it  must  be  direct- 
ly connected  with,  and  must  sub- 
stantially promote  business  necessi- 
ty and  safe  performance.168 

There  are  exceptions  and  limitations 
to  the  law's  rigorous  scrutiny  of  blanket 
exclusions,  whether  based  on  traditional 
disability  categories  or  physical  or  men- 
tal selection  criteria.  One  is  that  disabili- 
ty-based classifications  are  permitted  for 
remedial  programs,  services,  or  aids  tar- 
geted to  handicapped  people.169     Such 


programs  may  not,  however,  disadvan- 
tage handicapped  people.170 

As  noted  earlier,  risk  of  injury  to  self 
or  pthers  has  led  several  courts  to  uphold 
rather  broad  classifications  excluding 
different  groups  of  handicapped  people. 
For  example,  Department  of  Transporta- 
tion Federal  motor  carrier  safety  regula- 
tions prohibit  people  with  diabetes  melli- 
tus  who  use  insulin  from  operating  mo- 
tor vehicles  as  Federal  intercity  or  inter- 
state carriers.171  In  Monnier  v.  U.S. 
Department  of  Transportation, 172  a  truck 
driver  with  diabetes  who  had  driven 
500,000  miles  with  only  two  minor  acci- 
dents challenged  this  regulation  as  arbi- 
trary and  capricious  and  a  denial  of 
equal  protection.  A  Federal  district  court 
upheld  the  regulation,  noting  that  the 
question  was  not  whether  the  plaintiff 
could  drive  safely,  but  whether  it  was  an 
abuse  of  discretion  by  the  agency  to 
refuse  to  permit  drivers  with  diabetes  to 
seek  waivers  from  the  regulation  on  the 
ground  that  their  particular  cases  of  the 
disease  were  under  control.  The  court 
concluded  that  the  rule  was  not  arbi- 
trary or  capricious173  and  was  rational, 
given  the  agency's  record  of  studies  that 
showed  "a  significantly  higher  accident 


168  694  F.2d  at  621-22.  Under  a  State  antidiscri- 
mination statute,  the  Supreme  Court  of  Connect- 
icut has  ruled  that  a  requirement  of  "normal 
vision"  serves  "as  a  direct  disqualification  of 
anyone  with  a  visual  handicap"  and  concluded 
that  such  "[b]lanket  exclusions,  no  matter  how 
well  motivated,  fly  in  the  face  of  the  command  to 
individuate  that  is  central  to  fair  employment 
practices."  Connecticut  Inst,  for  the  Blind  v. 
Connecticut  Comm.  on  Human  Rights  and  Op- 
portunities, 176  Conn.  88,  405  A.2d  618,  621 
(1978).  Problems  with  the  administration  of  tests 
are  also  addressed  by  Federal  regulations,  e.g.,  29 
C.F.R.    §1613.705(b)   (1982)   and   case   law,   e.g., 


Stutts  v.  Freeman,  694  F.2d  666,  668-69  (11th  Cir. 
1983). 

169  28  C.F.R.  §41.51(c)  (1982). 

170  Shirey  v.  Devine,  670  F.2d  1188, 1204-05  (D.C. 
Cir.  1982). 

171  49  C.F.R.  §391.41(b)(3)  (1982).  These  regula- 
tions also  exclude  persons  with  a  variety  of  other 
handicaps.  In  some  cases,  however,  the  regula- 
tion provides  for  a  waiver.  See,  e.g.,  id,  §391. 41(a) 
&  (b)(1). 

172  465  F.  Supp.  718  (E.D.  Wis.  1979). 

173  Id.  at  721-24  (construing  Administrative 
Procedures  Act,  5  U.S.C.  §706(2)(A)  (1976)). 


132 


risk  for  diabetic  drivers  versus  the  gener- 
al public."174  It  is  unclear  whether  this 
case  would  have  been  decided  differently 
had  it  been  brought  under  section  504. 175 
Some  courts  have  rejected,  under  both 
constitutional  theories  and  section  504, 
broad  disability  classifications  based  on 
safety  arguments  when  the  risks  assert- 
ed proved  to  be  unsupported  fears.176 
Several  other  courts,  however,  have  up- 
held similar  classifications  based  on  as- 
sumptions, rather  than  factual  showings 
of  increased  safety  risks.177 

Litigation  has  provided  no  clear  an- 
swer by  which  decisionmakers  can  judge 
the  validity  of  disability  classifications 


174  465  F.  Supp.  at  722,  724.  See  also,  Lewis  v. 
Metropolitan  Transit  Comm'n,  320  N.W.2d  426 
(Minn.  1982);  Kampmeier  v.  Nyquist,  553  F.2d 
296  (2d  Cir.  1977).  But  cf.  Costner  v.  United 
States,  555  F.  Supp.  146  (E.D.  Mo.  1982).  There  is 
no  clear  standard  for  how  much  evidence  is 
necessary  or  how  much  risk  is  permissible.  In 
Doe  v.  New  York  Univ.  Medical  School,  666  F.2d 
761  (2d  Cir.  1981),  a  former  medical  student, 
whose  self-destructive  and  violent  psychotic  epi- 
sodes had  resulted  in  her  previous  dismissal, 
sought  readmission  to  a  medical  school  partially 
on  the  ground  that  her  mental  illness  was  cured. 
The  court  of  appeals  agreed  with  the  school  that 
the  applicant  need  not  be  readmitted  "if  there  is 
a  significant  risk  of.  .  .reoccurrence  [of  the  at- 
tacks]." 666  F.2d  at  777.  By  so  holding,  the  court 
rejected  the  district  court's  test  that  the  plaintiff 
must  be  deemed  qualified  if  it  was  "more  likely 
than  not"  that  she  could  complete  her  medical 
education.  Id.  In  Boynton  Cab  Co.  v.  Department 
of  Industry,  Labor  and  Human  Relations,  96 
Wis.2d  396,  291  N.W.2d  850  (1980),  the  Wisconsin 
Supreme  Court  interpreted  the  Wisconsin  Fair 
Employment  Practices  Act  to  uphold  a  taxi 
company's  refusal  to  hire  a  one-handed  driver, 
noting  that  such  a  policy  bore  "a  rational  rela- 
tionship to  the  safety  obligations  imposed  upon  a 
common  carrier  of  passengers  and  that  the 
standard.  .  .was  not  the  result  of  an  arbitrary 
belief  lacking  in  objective  reason  or  rationale." 
Id.  at  861.  The  court  reasoned  that  "for  Boynton's 
policy  to  be  reasonable  and  thus  lawful,  'it  is 


resulting  from  safety  concerns.  Because 
such  classifications  may  prevent  large 
groups  of  people  from  being  "otherwise 
qualified,"  they  should  be  carefully  scru- 
tinized to  see  that  they  are  supported  by 
adequate  evidence  and  are  not  unneces- 
sarily exclusionary. 

Another  exemption  from  the  prohibi- 
tion against  broad  classifications  rests  on 
claims  of  undue  administrative  burden. 
There  may  well  be  situations,  such  as  in 
large  governmental  benefits  programs, 
where  imposition  of  individualization  re- 
quirements would  constitute  undue  ad- 
ministrative burdens,  which  Davis  prohi- 
bited.178 In  Costner  v.  U.S.,179  however,  a 

enough  to  show  that  elimination  of  the  hiring 
policy  might  jeopardize  the  life  of  one  more 
person  than  might  otherwise  occur  under  the 
present  hiring  practice'."  Id.  at  859,  quoting 
Hodgson  v.  Greyhound  Lines,  Inc.,  499  F.2d  859, 
863  (7th  Cir.  1974),  cert,  denied,  419  U.S.  1122 
(1975). 

175  The  lawsuit  was  originally  begun  in  1976. 
Only  in  1978  was  the  Rehabilitation  Act  of  1973 
amended  to  include  programs  or  activities  of  the 
Federal  Government  within  the  scope  of  section 
504.  Rehabilitation,  Comprehensive  Services,  and 
Developmental  Disabilities  Amendments  of  1978, 
Pub.  L.  No.  95-602,  §119(2),  92  Stat.  2955,  2982 
(codified  at  29  U.S.C.  §794  (Supp.  V  1981)). 

176  Bentivegna  v.  United  States  Dep't  of  Labor, 
694  F.2d  619,  622-23  (9th  Cir.  1982);  New  York 
Ass'n  for  Retarded  Citizens  v.  Carey,  466  F.  Supp 
487,  502-03  (E.D.  N.Y.  1979)  (segregation  of 
mentally  retarded  children  who  were  carriers  of 
hepatitis  B  violated  equal  protection  and  section 
504  when  nonhandicapped  carriers  of  hepatitis  B 
were  not  segregated  and  there  was  inadequate 
showing  of  safety  risk),  affd,  612  F.2d  644  (2d  Cir. 
1979). 

177  Boynton  Cab  Co.  v.  Department  of  Industry, 
Labor  and  Human  Relations,  96  Wis.2d  396,  291 
N.W.2d  850,  860-61  (1980);  Strathie  v.  Depart- 
ment of  Transportation,  Comm.  of  Pennsylvania, 
547  F.Supp  1367, 1379  (E.D.  Pa.  1982). 

178  Southeastern  Community  College  v.  Davis, 
442  U.S.  at  412.  See  Weinberger  v.  Salfi,  422  U.S. 
749,  781-82  (1975). 


133 


Federal  district  court  rejected  the  con- 
tention that  the  U.S.  Department  of 
Transportation  lacked  the  resources  or 
personnel  to  make  an  individualized  de- 
termination of  whether  a  person  with 
epilepsy  that  is  under  control  can  safely 
operate  a  motor  vehicle.  "Such  inconve- 
nience," said  the  court,  "should  not 
stand  in  the  way  of  justice."180 

Removing  Architectural, 
Transportation,  and 
Communication  Barriers 

The  process  of  individualized  consider- 
ation of  abilities  and  needs,  which  is 
central  to  reasonable  accommodation, 
cannot  occur  when  environmental  barri- 
ers deny  handicapped  people  access  to 
programs  and  activities.  Architectural, 
transportation,  and  communication  bar- 
riers exclude  or  limit  access  to  whole 
groups  of  handicapped  individuals  with 
similar  functional  limitations.  Conse- 
quently, removal  of  those  barriers  is 
necessary  before  reasonable  accommoda- 
tions can  be  rendered. 

As  the  introduction  to  this  chapter 
explained,  reasonable  accommodation 
and  the  removal  of  environmental  barri- 
ers are  different  aspects  of  nondiscrimi- 
nation requirements.  The  former  focuses 


179  Costner  v.  United  States,  555  F.  Supp.  146 
(E.D.  Mo.  1982). 

180  Id.  at  150,  citing  Stanton  v.  Stanton,  421  U.S. 
7  (1975);  see  also  Gurmankin  v.  Costanzo,  411  F. 
Supp.  982,  991  (E.D.  Pa.  1976),  affd,  556  F.2d  184 
(3d  Cir.  1977). 

181  The  difference  between  removing  environ- 
mental barriers  that  exclude  a  group  and  those 
that  exclude  an  individual  may  sometimes  be 
slim.  Hospitals,  for  example,  must  establish  a 
procedure  for  effective  communication  for  hear- 
ing-impaired persons  when  they  present  them- 
selves for  emergency  medical  care.  45  C.F.R. 
§84. 52(c)  (1982).  Although  an  interpreter  may 


on  access  for  individuals,  while  the  latter 
focuses  on  access  for  classes  of  handi- 
capped people.  Moreover,  removal  of 
environmental  barriers  frequently  in- 
volves considerations  of  time  and  costs 
not  present  with  respect  to  individualiz- 
ing opportunities.181  Although  section 
504,  to  varying  degrees,  requires  the 
removal  of  all  three  types  of  environ- 
mental barriers,  specific  laws  and  legal 
standards  apply  to  each  type. 

Architectural  Barriers 

The  Architectural  Barriers  Act  re- 
quires buildings  constructed,  altered,  or 
financed  by  the  Federal  Government  to 
be  accessible  to,  and  usable  by,  physical- 
ly handicapped  people.182  According  to 
one  commentator,  Congress:  "intended 
the  term  'buildings'  to  be  given  the 
broadest  possible  interpretation  and  in- 
cluded any  structure  used  by  the  public, 
whether  it  be  a  small  rest  station  at  a 
public  park  or  a  multimillion  dollar 
Federal  office  building."183 

Section  504  regulations  also  contain 
architectural  accessibility  requirements. 
All  federally  assisted  programs  or  activi- 
ties must  be  accessible.184  All  new  Feder- 
al or  federally  assisted  buildings  must  be 

only  be  required  to  be  present  when  a  deaf  person 
comes  to  the  emergency  room,  prior  to  that  time 
the  hospital  clearly  must  establish  a  procedure 
that  will  make  it  possible  for  an  interpreter  to  be 
available.  See  45  C.F.R.  pt.  84,  app.  A,  subpt.  F, 
no.  36,  at  310-16  (1982).  This  regulation  requires 
the  removal  of  a  group  communication  barrier, 
but  its  implementation  usually  will  benefit  one 
individual  at  a  time. 

182  42  U.S.C.  §4151  (1976). 

183  Goldman,  "Architectural  Barriers,"  p.  5. 

184  28  C.F.R.  §41. 58(a)  (1982);  45  C.F.R.  §84.23(a) 
(1982).  See  Goldman,  "Architectural  Barriers,"  p. 
14. 


134 


designed  and  built  in  compliance  with 
accessibility  requirements.185  Alter- 
ations of  existing  facilities  must  also  be 
accessible  to  the  maximum  extent  feasi- 
ble,186 and  programs  or  activities  in  all 
existing  buildings  must  be  made  accessi- 
ble.187 Program  accessibility  does  not 
necessarily  mean  that  all  existing  build- 
ings or  every  part  of  a  building  must  be 
made  accessible.  For  example,  a  recipi- 
ent of  Federal  funds  need  not  put  an 
elevator  in  a  multistory  building  if  the 
program  would  be  accessible  on  the  first 
floor.188 

The  duty  to  provide  architectural  ac- 
cessibility under  both  statutes  is  inde- 
pendent of  any  particular  handicapped 
person  seeking  access.  Conversely,  com- 
pliance with  minimum  accessibility 
guidelines  does  not  obviate  the  need  for 
recipients  of  Federal  financial  assistance 
to  make  certain  modifications  tailored  to 
a  handicapped  person's  individual  needs. 
Relocating  particular  offices  or  jobs  to 
buildings  or  parts  of  buldings  that  are 
accessible   to   handicapped   people,    for 


185  28  C.F.R.  §41.58(a)  (1982);  45  C.F.R.  §84.23(a) 
(1982).  See  Goldman,  "Architectural  Barriers,"  p. 
14. 

186  28  C.F.R.  §41.58(a)  (1982);  45  C.F.R.  §84.23(b) 
(1982). 

187  28  C.F.R.  §41.57(a)  (1982);  45  C.F.R.  §84.22(a) 
(1982). 

188  See  45  C.F.R.  §84.22(b)  (1982);  45  C.F.R.  pt.  84, 
app.  A,  subpt.  C,  no.  20  at  301-02  (1982). 

189  45  C.F.R.  §84.12(b)  (1982);  45  C.F.R.  pt.  84, 
app.  A.,  subpt.  B,  no.  16  at  300  (1982).  Section  503 
also  requires  covered  Federal  contractors  to 
make  certain  architectural  modifications  for  dis- 
abled employees  or  applicants.  See  41  C.F.R.  60- 
741,  app.  B,  at  564  (1982).  A  similar  obligation 
exists  with  respect  to  Federal  employees  under 
section  501.  29  C.F.R.  §1613.704(b)(l)  (1982).  See 
also  Espino  v.  Besteiro,  520  F.  Supp.  905  (S.D. 
Tex.  1981)  (preliminary  injunction  granted  re- 
quiring school  district  to  air  condition  classroom 
of  handicapped  student). 


example,  might  be  such  a  modification.189 

At  present,  no  single  set  of  minimum 
technical  requirements  for  accessibility 
is  in  general  use  by  architects  and  State 
and  Federal  regulatory  bodies.190  Adop- 
tion of  a  common  standard  would  pro- 
mote increased  accessibility  as  new 
buildings  are  designed  and  constructed 
with  varying  physical  abilities  in 
mind.191 

As  chapter  4  noted,192  providing  for 
architectural  accessibility  in  new  builid- 
ings  costs  little,  accounting  for  only  an 
estimated  one-tenth  to  one-half  of  1 
percent  of  construction  costs.  Perhaps 
because  the  costs  are  insignificant,  espe- 
cially when  compared  to  the  benefits  of 
accessibility,193  the  Architectural  Barri- 
ers Act  and  section  504  of  the  Rehabilit- 
ation Act  provide  only  a  limited  cost- 
related  defense  for  failure  to  meet  their 
requirements.  The  Architectural  Barri- 
ers Act  permits  the  heads  of  each  of  four 
agencies  authorized  to  issue  accessibility 
standards  under  the  statute  to  modify  or 
waive  any  standard  on  a  case-by-case 

190  There  is  a  divergence  between  the  Architec- 
tural Transportation  Barriers  Compliance 
Board's  "Minimum  Guidelines"  and  the  techni- 
cal standards  issued  by  the  American  National 
Standard's  Institute,  ANSI  Al  17. 1-1980.  See  47 
Fed.  Reg.  33862-864  (1982);  Goldman,  "Architec- 
tural Barriers,"  p.  24.  In  addition,  many  States 
have  laws  and  building  code  provisions  relating 
to  architectural  accessibility  for  handicapped 
people.  See  Comment,  "Access  to  Buildings  and 
Equal  Employment  Opportunities  for  the  Dis- 
abled: Survey  of  State  Statutes,"  Temp.  L.Q.,  vol. 
50  (1977),  pp.  1067,  1074-76;  Goldman,  "Architec- 
tural Barriers,"  pp.  15-18. 

191  Goldman,  "Architectural  Barriers,"  pp.  23- 
25. 

192  See  chap.  4  in  the  section  entitled  "The  Costs 
and  Benefits  of  Full  Participation." 

193  Ibid. 


135 


basis,  where  such  action  is  "clearly  nec- 
essary."194 Sections  501,  503,  and  504 
permit  employers  to  interpose  a  defense 
of  undue  hardship  where  architectural 
modifications  for  employees  or  appli- 
cants would  be  too  costly.195  And  while 
all  programs  and  activities  must  be  ac- 
cessible immediately,  alterations  to  ex- 
isting buildings  are  required  under  a 
feasibility  standard,  with  up  to  3  years 
after  the  effective  date  of  the  agency 
regulation  for  completing  the  altera- 
tions.196 Beyond  these  limited  excep- 
tions, cost  is  not  a  defense  to  providing 
accessible  buildings  and  programs. 

Transportation  Barriers 

Three  separate  Federal  statutes  bear 
on  the  obligation  to  provide  accessible 
mass  transit.  In  addition  to  section  504, 
section  16(a)  of  the  Urban  Mass  Trans- 
portation Act197  declared,  as  a  "national 
policy,"  "that  elderly  and  handicapped 
persons  have  the  same  right  as  other 
persons"  to  use  mass  transit  and  that 
"special  efforts"  shall  be  made  in  the 
planning  and  design  of  facilities  and 
services  to  ensure  that  usable  mass  tran- 
sit is  available  to  those  groups.198  Section 
165(b)  of  the  Federal- Aid  Highway  Act199 
requires  that  projects  funded  under  the 
act  must  be  planned,  designed,  construct- 
ed, and  operated  to  allow  effective  use 
by,  among  others,  persons  using  wheel- 
chairs. The  legal  standards  under  these 
Federal  mandates  have  varied,  however, 


194  42  U.S.C.  §4156(1)  (1976). 

195  See  this  chapter  in  the  section  entitled 
"Limitations  Upon  the  Obligation  to  Accommo- 
date." 

196  28  C.F.R.  §41.57(b)  (1982). 

197  49  U.S.C.  §1612(a)  (1976). 

198  Id. 


and  their  application  continues  to  be 
uncertain. 

The  Department  of  Transportation 
(DOT)  has  issued  three  different  sets  of 
regulations.  The  first  adopted  a  special 
efforts  approach,  the  second,  under  sec- 
tion 504,  took  a  mainstreaming  ap- 
proach, and  the  third  returned  to  a 
special  efforts  scheme.  Because  these 
three  sets  of  regulations  continue  to 
govern  aspects  of  many  urban  mass 
transit  systems,  they  will  be  briefly  sum- 
marized. 

The  first  special  efforts  approach  was 
embodied  in  regulations  promulgated  in 
1976.  These  regulations  required,  among 
other  things,  that  planning  for  transpor- 
tation improvements  funded  by  the  Ur- 
ban Mass  Transportation  Administra- 
tion demonstrate  satisfactory  special  ef- 
forts in  planning  services  and  facilities 
that  would  be  usable  by  handicapped 
people.200  Plans  submitted  for  funding 
had  to  show  projects  designed  to  benefit 
handicapped  people,201  and  since  Sep- 
tember 30,  1977,  recipients  must  show 
reasonable  progress  in  implementing 
previously  planned  projects.202 

In  1979  the  Department  of  Transporta- 
tion issued  new  regulations,  at  least  in 
part  to  comply  with  the  government- 
wide  section  504  guidelines  that  re- 
quired, "[i]n  the  context  of  mass  trans- 
portation, 'mainstreaming'  mean[ing] 
the  physical  integration  of  the  handi- 
capped with  other  members  of  the  travel- 
ing public."203    The  1979  regulations  set 

199  23  C.F.R.  §142  note  (1976). 

200  23  C.F.R.  §450. 120(a)(5)  (1976);  49  C.F.R. 
613.204(a)  (1976). 

201  49  C.F.R.  §613.204(b)  (1976). 

202  Id.,  §1613.204(c). 

203  American  Pub.  Transit  Ass'n  v.  Lewis,  655 
F2d  1272, 1275  (D.C.  Cir.  1981). 


136 


full  accessibility  as  the  goal  and  set 
specific  criteria  for  determining,  within 
a  set  time  frame,  its  achievement  with 
respect  to  various  types  of  transporta- 
tion.204 The  validity  of  the  second  set  of 
regulations  was  put  into  question  by 
American  Public  Transit  Association  v. 
Lewis,205  which  held  that  to  the  extent 
the  regulations  were  based  upon  section 
504,  they  required  modifications  that 
were  too  massive  and  too  costly.  The 
court  remanded  the  case  back  to  the 
Department  of  Transportation  to  see  if 
the  regulations  could  be  based  on  the 
Federal  Aid-Highway  Act  or  the  Urban 
Mass  Transportation  Act.206  In  response, 
DOT  issued  new  regulations  on  July  21, 
1981,  superseding  the  1979  regulations.207 
These  new  regulations  essentially  re- 
turn to  the  special  efforts  approach  of 
the  1976  regulations.208 

Courts  have  rejected  handicapped 
plaintiffs'  claims  of  a  right  to  totally 
accessible  mass  transit  systems  under  all 
three  Federal  statutes209  and  under 
constitutional  theories.210  Recently,  how- 


204  See  49  C.F.R.  pt.  27  (1980).  The  regulations 
required  that  by  July  1982  at  least  one-half  of  the 
peak  hour  fixed  route  bus  and  light  rail  service 
must  be  accessible  to  wheelchair  users.  Id., 
§27.85(a)(l)  and  §27.89(a)(2).  Rapid  and  commut- 
er rail  systems  were  also  to  be  accessible  to 
handicapped  persons  using  steps,  and  "key" 
stations,  such  as  those  heavily  used,  those  that 
are  transfer  or  terminal  points,  and  those  serving 
major  activity  centers,  were  to  be  accessible  to 
wheelchair  users.  Id,  §27. 87(a)(1).  Extraordinary 
structural  changes  could  be  made  over  a  30-year 
period.  Id.,  §27.87(a)(4). 

205  655  F.2d  1272  (D.C.  Cir.  1981). 

206  Id.  at  1277-80. 

207  49  C.F.R.  §27.77  (1982). 

208  See  Dopico  v.  Goldschmidt,  687  F.2d  644,  647- 
48  (2d  Cir.  1982). 

209  See  Dopico  v.  Goldschmidt,  687  F.2d  644,  647- 
48  (2d  Cir.  1982);  Lloyd  v.  Illinois  Regional 
Transp.  Auth.,  548  F.Supp  575,   584  (N.D.  111. 


ever,  two  courts  have  stated  that  section 
504  requires  some  degree  of  accessibility 
to  mass  transit  for  handicapped  people. 
In  Dopico  v.  Goldschmidt,211  the  United 
States  court  of  appeals  required  a  district 
court  to  hear  the  merits  of  a  section  504 
claim  seeking  changes  in  the  New  York 
City  transit  system,  noting:  "We  believe 
that  section  504  does  require  at  least 
modest,  affirmative  steps,  to  accommo- 
date the  handicapped  in  public  transpor- 
tation."212 In  Rhode  Island  Handicapped 
Action  Committee  v.  Rhode  Island  Public 
Transit  Authority,213  a  district  court 
held  that  a  transit  authority  violated 
section  504  by  planning  to  purchase  non- 
lift-equipped  buses.  In  so  doing,  the  court 
also  called  into  question  the  narrow 
interpretation  of  section  504  by  the  De- 
partment of  Transportation  in  its  1981 
special  efforts  regulations.214 

As  the  foregoing  makes  clear,  the  issue 
of  expense  has  been  a  particular  concern 
of  courts215  and  regulators216  alike  in 
trying  to  set  a  standard  for  accessible 
mass  transit.  The  substantial  costs  in- 

1982);  Michigan  Paralyzed  Veterans  of  America 
v.  Coleman,  545  F.  Supp.  245,  249-50  (E.D.  Mich. 
1982). 

210  E.g.,  United  Handicapped  Fed'n  v.  Andre,  558 
F.2d  413,  415-16  (8th  Cir.  1977);  Leary  v.  Crapsey, 
566  F.2d  863,  865-66  (2d  Cir.  1977);  Lloyd  v. 
Illinois  Regional  Transp.  Auth.,  548  F.2d  1277 
(7th  Cir.  1977). 

211  687  F.2d  644  (2d  Cir.  1982). 

212  Id.  at  652.  The  Court  rejected  an  all-or- 
nothing  approach  to  the  issue.  Id.  at  653. 

213  549  F.  Supp.  592  (D.R.I.  1982). 

214  Id.  at  609. 

215  See,  e.g.,  American  Pub.  Transit  Ass'n  v. 
Lewis,  655  F.2d  1272, 1278  (D.C.  Cir.  1981). 

216  Cost  considerations  were  one  of  the  major 
reasons  why  the  new  "special  efforts"  Transpor- 
tation Department  regulations  were  promulgat- 
ed under  the  Reagan  administration's  regulatory 
review  process.  See  46  Fed.  Reg.  37,488  (1981). 


137 


volved  in  making  mass  transit  accessible 
must  be  viewed  in  context.  The  Rhode 
Island  Public  Transit  Authority  decision 
commented  on  the  costs  of  making  a 
mass  transit  system  more  usable  by 
mobility-handicapped  persons:  "The 
question  presented.  .  .is  whether  the 
benefits  of  the  purchase  to  the  handi- 
capped outweigh  the  financial  expense 
that  would  be  incurred  by  the  State."217 
In  Dopico  v.  Goldschmidt,218  the  court 
noted  that  a  $6  million  expenditure  for 
transportation  services  to  the  handi- 
capped out  of  a  total  Federal  mass  trans- 
portation subsidy  to  the  city  of  $490 
million,  although  a  considerable  sum, 
"was  not  'massive'  either  in  absolute 
terms  or  relative  to  the  City's  total 
receipt  of  mass  transportation  assis- 
tance. .  .  ." 

The  government-wide  Department  of 
Justice  section  504  regulations  also  make 
clear  that  the  time  period  within  which 
to  make  accessibility  modifications  is 
also  a  relevant  consideration.  The  regu- 
lations permit  extending  the  time  period 
in  which  to  make  "extraordinary  and 
expensive  structural  changes."219  Al- 
though time  as  a  factor  has  not  been 
extensively  discussed,  it  seems  reason- 
able that  some  barriers  to  access  by 
handicapped  people  can  be  eliminated 
quickly  and  at  little  cost.  Eliminating 
other  barriers,  such  as  making  mass 
transit  accessible,  is  a  more  evolutionary 
process  that  requires  extensive  planning 
and  may  take  a  generation.  The  ability 

217  Rhode  Island  Handicapped  Action  Comm.  v. 
Rhode  Island  Pub.  Transit  Auth.,  549  F.  Supp. 
592,  613  (D.R.I.  1982). 

218  Dopico  v.  Goldschmidt,  687  F.2d  644,  650  (2d 
Cir.  1982). 

219  28  C.F.R.  §41.57(b)  (1982). 

220  Rehabilitation,  Comprehensive  Services,  and 


to  spread  the  cost  of  such  barrier  remov- 
als over  time  would  appear  to  be  an 
important  consideration  in  a  rational 
assessment  of  the  reasonableness  of  pro- 
posed accommodation  costs. 

Communication  Barriers 

Communication  barriers  involve  the 
ways  people  receive  and  send  informa- 
tion and  messages  that  are  not  accessible 
to  people  with  certain  types  of  handi- 
caps. Deaf  people,  for  example,  may  not 
receive  audible  communications,  and 
blind  people  may  not  have  access  to 
communications  in  usual  printed  form. 
People  with  certain  learning  disabilities, 
such  as  dyslexia,  may  also  have  trouble 
with  written  communication.  In  some 
circumstances,  such  communication  bar- 
riers may  constitute  illegal  handicap 
discrimination. 

The  1978  amendments  to  the  Rehabili- 
tation Act  of  1973  gave  the  Architectural 
and  Transportation  Barriers  Compliance 
Board  authority  to  "investigate  and  ex- 
amine alternative  approaches"  to  the 
elimination  of  communication  barriers 
and  to  make  appropriate  recommenda- 
tions for  legislation  to  the  President  and 
Congress.220  Under  HHS  regulations, 
health,  welfare,  and  social  service  pro- 
viders subject  to  section  504  must  take 
necessary  steps  to  see  that  notices  con- 
cerning benefits  or  services,  written  ma- 
terial concerning  waivers  of  rights,  and 
consent  to  treatment  are  provided  effec- 
tively to  handicapped  people  generally 

Developmental  Disabilities  Amendments  of  1978, 
Pub.  L.  no.  95-602,  §  118(b)(2),  92  Stat.  2955,  2980 
(codified  as  amended  at  29  U.S.C.  §792(b)(2) 
(Supp.  V  1981).  The  Board  already  had  this 
authority  with  respect  to  architectural,  transpor- 
tation, and  attitudinal  barriers.  29  U.S.C.  §722(b) 
(1976). 


138 


and  to  persons  "with  impaired  sensory  or 
speaking  skills"  particularly.221  Hospi- 
tals receiving  Federal  funds  are  required 
to  "establish  a  procedure  for  effective 
communication  with  persons  with  im- 
paired hearing  for  the  purpose  of  provid- 
ing emergency  health  care."222 

The  desirability  of  making  television 
more  available  and  undertandable  to 
hearing-impaired  people  has  recently 
been  recognized  by  the  United  States 
Supreme  Court.  In  Community  Televi- 
sion of  Southern  California  v. 
Gottfried,223  the  Court  reviewed  a  Feder- 
al Communications  Commission  (FCC) 
decision  that  refused  to  deny  a  license 
renewal  to  a  television  station  that  had 
allegedly  not  made  sufficient  efforts, 
through  processes  such  as  captioning,  to 
improve  service  to  those  with  hearing 
impairments.  The  Court  recognized  the 
important  public  interest  at  stake  and 
indicated  that  "the  FCC  has  an  adminis- 
trative duty  to  consider  the  needs  of 
handicapped  citizens."224  Because  the 
FCC  was  not  a  funding  agency,  however, 
and  in  the  absence  of  any  pertinent 
regulations,  the  Court  ruled  that  the 
FCC  had  not  abused  its  discretion  in 
granting  the  license  renewal.225  None- 
theless, the  decision  strongly  suggests 
that  section  504  may  be  interpreted  to 
require  the  elimination  of  unnecessary 
communication  barriers. 

Conclusion 

Handicap  nondiscrimination  laws  and 
the  regulations  and  case  law  interpret- 
ing them  permit  some  general  state- 
ments about  handicap  discrimination  in- 
volving reasonable  accommodation.  Ille- 

221  45  C.F.R.  §84.52(b)  (1982). 

222  Id.,  §84.52(c). 

223  103  S.Ct.  885  (1983). 


gal  handicap  discrimination  occurs  when 
a  qualified  handicapped  person,  or  a 
person  who  would  be  qualified  with  a 
reasonable  accommodation,  is  disadvan- 
taged or  denied  an  opportunity  solely  on 
the  basis  of  handicap  because  a  reason- 
able accommodation  is  refused.  Reason- 
able accommodation  means  providing  or 
modifying  devices,  services  or  facilities 
or  changing  practices  or  procedures  in 
order  to  match  a  particular  person  with 
a  particular  program  or  activity.  Its 
essence  is  making  opportunities  avail- 
able to  handicapped  persons  on  an  indi- 
vidualized basis.  A  number  of  legal  stan- 
dards have  emerged,  including  those 
involving:  the  definition  of  a  "qualified 
handicapped  individual"  entitled  to  ac- 
commodation; a  requirement  that  equiv- 
alent opportunity  be  provided;  limita- 
tions upon  the  duty  to  accommodate; 
requirements  regarding  the  elimination 
of  discriminatory  selection  criteria;  and 
requirements  regarding  the  removal  of 
architectural,  transportation,  and  com- 
munication barriers. 

These  general  legal  statements  em- 
phasize that  there  is  a  duty  to  accommo- 
date unless  the  context  and  all  the 
circumstances  make  accommodation  un- 
reasonable. Although  accurate,  general 
statements  do  not  provide  simple  legal 
rules  that  answer  in  advance  the  ques- 
tions of  when,  what,  and  how  much 
accommodation  is  due  in  given  circum- 
stances. Regulators,  courts,  and  those 
subject  to  these  laws  face  many  complex- 
ities and  difficulties  in  understanding 
and  applying  handicap  nondiscrimina- 

224  Id.  at  892,  n.  14. 

225  Id.  at  891. 


139 


tion  law  and  reasonable  accommodation 
requirements. 

One  district  court  judge,  grappling 
with  these  problems,  has  concluded 
"there  is  [no]  magical  formula  that  can 
be  used  to  determine  precisely  what 
modifications  of.  .  .existing  program [s] 
are  required  by  §504. "226  This  view  was 
recently  seconded  by  authors  of  the  U.S. 
Department  of  Labor's  section  503  ac- 
commodation study.  The  study  recom- 
mends that  the  Department  formulate  a 
series  of  guidelines  to  help  employers 
comply  with  section  503's  accommoda- 
tion requirement.227  The  essence  of  the 
study's  recommendation  is  that  a  series 
of  relevant  considerations  or  questions 
be  established  that  an  employer  could 
use  to  assess  the  need  for  and  reason- 
ableness of  specific  accommodations  for  a 
particular  handicapped  worker. 

The  idea  that  the  obligation  to  make  a 
reasonable  accommodation  in  a  particu- 
lar instance  might  best  be  defined  by  a 
process  has  merit.  Administrative  agen- 
cies could  identify  factors  appropriate  for 


226  Rhode  Island  Handicapped  Action  Comm.  v. 
Rhode  Island  Pub.  Transit  Auth.,  549  F.  Supp. 
592,  611  (D.R.I.  1982). 


elementary  and  secondary  education, 
higher  education,  employment,  and  oth- 
er areas.  They  could  suggest  the  weight 
to  be  given  to  different  factors  by  covered 
programs.  Regulations  could  also  require 
programs  to  seek  technical  assistance 
from  groups  experienced  in  making  ac- 
commodations in  particular  contexts. 
And,  of  course,  the  regulations  might 
also  require  specific  types  of  accommoda- 
tions, as  they  do  now  in  such  areas  as  the 
delivery  of  emergency  health  care  to 
persons  with  hearing  impairments.  Es- 
tablishing a  process  that  requires  consid- 
eration of  all  relevant  factors  will  not 
solve  the  dilemma  of  the  program  official 
who  wants  to  know  exactly  what  accom- 
modation is  required  to  comply  with  the 
law.  That  degree  of  certainty  is  probably 
impossible  in  handicap  antidiscrimina- 
tion law.  But  it  will  provide  those  who 
must  comply  with  the  law  and  those  who 
must  enforce  it  with  a  clearer  under- 
standing and  consistent  framework  for 
matching  particular  handicapped  people 
with  particular  programs. 

227   Accommodation  Study,  pp.  104-05. 


140 


Chapter  7 

Applying  Established  Civil  Rights  Law  to  Handicap 
Discrimination 


Handicapped  people  have  drawn  ex- 
tensively from  the  civil  rights  strategies 
of  other  groups.  The  words  of  the  U.S. 
Supreme  Court  in  the  school  desegrega- 
tion decision,  Brown  v.  Board  of  Educa- 
tion, provided  the  cornerstone  of  the 
equal  educational  opportunity  lawsuits 
brought  on  behalf  of  handicapped  chil- 
dren: 


In  these  days  it  is  doubtful  that  any 
child  may  reasonably  be  expected  to 
succeed  in  life  if  he  is  denied  the 
opportunity  of  an  education.  Such 
an  opportunity,  where  the  state  has 
undertaken  to  provide  it,  is  a  right 
which  must  be  made  available  to  all 
on  equal  terms.1 

One  of  the  first  decisions  finding  a  con- 
stitutional right  to  equal  public  educa- 
tion for  handicapped  children,   Wolf  v. 

1  347  U.S.  483,  493  (1954). 

2  Civil  No.  182646  (3d  Judicial  Dist.  Ct.,  Utah, 
Jan.  8, 1969). 

3  Pennsylvania  Ass'n  for  Retarded  Children  v. 
Commonwealth  of  Pa.,  334  F.  Supp.  1257  (E.D. 
Pa.  1971);  343  F.  Supp.  279  (E.D.  Pa.  1972). 

4  Leopold  Lippman  and  I.  Ignacy  Goldberg, 
Right  to  Education:  Anatomy  of  the  Pennsylvania 
Case  and  Its  Implications  for  Exceptional  Chil- 


Legislature  of  the  State  of  Utah,2  does 
little  more  than  paraphrase  the  Supreme 
Court's  language  in  Brown.  The  PARC 
decision,3  an  early  milestone  of  civil 
rights  efforts  for  handicapped  persons, 
and  subsequent  special  education  cases 
were  consciously  patterned  after  school 
racial  desegregation  cases.4 

Handicap  antidiscrimination  laws, 
such  as  section  504  of  the  Rehabilitation 
Act  of  1973, 5  parallel  earlier  civil  rights 
legislation.6  In  fact,  section  504  was 
added  to  the  Rehabilitation  Act  after 
several  attempts  to  amend  the  Civil 
Rights  Act  of  1964  to  include  handi- 
capped persons  failed  in  Congress.7 

Handicapped  people  have  also  bor- 
rowed from  racial  and  ethnic  minorities 
and  women  many  tactical  approaches 
and  persuasive  techniques.  In  1977,  for 
example,  handicapped  people  demon- 
strated in  10  American  cities  seeking  an 

dren  (New  York:  Teachers  College  Press,  1973), 
pp.  21,  24. 

5  29  U.S.C.  §794  (Supp.  V  1981). 

6  See  discussion  of  the  Rehabilitation  Act  in 
chap.  3  in  the  section  entitled  "Rehabilitation 
Act  of  1973." 

7  See  119  Cong.  Rec.  7114  (daily  ed.  Mar.  8, 1973); 
S.  Rep.  No.  1297,  93d  Cong.  2d  Sess.  4,  reprinted 
in  1974  U.S.  Code  Cong.  &  Ad.  News  6373,  6390. 


141 


end  to  delays  in  the  promulgation  of 
regulations  implementing  section  504. 

The  literature  recounting  advocacy  for 
handicapped  people  acknowledges  the 
legacy  of  earlier  civil  rights  efforts,  par- 
ticularly the  large  body  of  civil  rights 
jurisprudence  and  experience  upon 
which  handicap  discrimination  law 
builds.8  But,  because  the  classification 
"handicap"  differs  from  other  antidiscri- 
mination classifications,  such  as  race, 
sex,  national  origin,  age,  and  religion, 
there  are  significant  limits  to  applying 
established  civil  rights  law  to  discrimina- 
tion based  on  handicap.  After  explaining 
these  distinguishing  characteristics,  this 
chapter  counsels  against  mechanically 
incorporating  in  handicap  discrimina- 
tion law  the  antidiscrimination  concepts 
and  standards  developed  in  other  civil 
rights  contexts.  It  suggests  that  in  ad- 
dressing particular  issues,  established 
civil  rights  law  should  be  selectively 
incorporated  into  handicap  discrimina- 
tion laws  based  on  the  nature  of  this 
protected  class,  the  nature  and  extent  of 
the  discrimination  its  members  experi- 
ence, and  the  congressionally  mandated 
objective  of  full  participation. 


8  E.g.,  Jack  Achtenberg,  "Law  and  the  Physical- 
ly Disabled:  An  Update  with  Constitutional  Im- 
plications," Sw.  L.  Rev.,  vol.  8  (1976),  pp.  847,  849, 
n.  3;  Lippman  and  Goldberg,  Right  to  Education, 
pp.  12-15;  Marcia  P.  Burgdorf  and  Robert  L. 
Burgdorf,  Jr.,  "A  History  of  Unequal  Treatment: 
The  Qualifications  of  Handicapped  Persons  as  a 
'Suspect  Class'  Under  the  Equal  Protection 
Clause,"  Santa  Clara  Lawyer,  vol.  15  (1976),  p. 
855;  David  Yuckman,  "Employment  Discrimina- 
tion and  the  Visually  Impaired,"  Wash.  &  Lee  L. 
Rev.,  vol.  39  (1982),  p.  69;  Frank  Bowe,  Handicap- 
ping America  (New  York:  Harper  &  Row,  1978), 
p.  190.  The  suggestion  that  civil  rights  efforts  by 


Distinguishing  Features  of  the 
Handicap  Classification 

Civil  rights  laws  use  nearly  identical 
words  to  prohibit  discrimination  on  the 
basis  of  race,  sex,  national  origin,  reli- 
gion, age,  and  handicap.  This  common 
language  bespeaks  the  obvious  parallels. 
But  these  commonalities  should  not  obs- 
cure the  distinguishing  characteristics  of 
each  protected  class.  Although  the 
unique  features  of  the  classification  of 
"handicap"  cannot  by  themselves  deter- 
mine when  to  apply  to  handicap  discrim- 
ination law  the  legal  analyses  developed 
with  regard  to  other  kinds  of  discrimina- 
tion, they  underscore  significant  differ- 
ences that  may  have  legal  consequences. 

Functional  Limitations 


[T]he  most  significant  difference  be- 
tween the  handicapped  and  other 
protected  classes  is  the  fact  that  the 
condition  which  initially  gives  rise 
to  the  protective  status  may  also 
affect  an  individual's.  .  .  perfor- 
mance.9 


Chapter  5  describes  how  the  status 
category  of  handicapped  and  various 
disability  labels  applied  to  handicapped 

handicapped  persons  should  parallel  the  prior 
efforts  of  racial  minorities  was  made  in  two 
seminal  works  that  were  published  in  1969.  U.S., 
Department  of  Health,  Education,  and  Welfare, 
Legal  Rights  of  the  Disabled  and  Disadvantaged, 
by  Richard  Allen  (Washington,  D.C.:  Govern- 
ment Printing  Office,  1969),  pp.  1-8,  79-84; 
Leonard  Kriegel,  "Uncle  Tom  and  Tiny  Tim: 
Some  Reflections  on  the  Cripple  as  Negro," 
American  Scholar,  vol.  38  (1969),  p.  412. 
9  Amy  Jo  Gittler,  "Fair  Employment  and  the 
Handicapped:  A  Legal  Perspective,"  DePaul  L 
Rev.,  vol.  27  (1978),  pp.  953,  967  (hereafter  cited 
as  Gittler). 


142 


people  distort  the  fact  that  mental  and 
physical  abilities  occur  along  a  spectrum. 
Despite  the  artificiality  of  the  handi- 
capped-normal dichotomy  and  the  arbi- 
trariness of  the  line-drawing,  however, 
actual  functional  limitations  are  gener- 
ally the  basis  for  labeling  people  as 
handicapped.  Most,  but  not  all,10  of  those 
designated  handicapped  do  suffer  some 
impairment  of  function.  As  discussed  in 
chapter  2,  prejudice  and  inaccurate  ste- 
reotypes may  overestimate  actual  limita- 
tions, but  some  limitation  on  functional 
ability  may  nonetheless  exist.  In  fact, 
many  legal  definitions  of  handicap  re- 
quire as  a  component  that  the  condition 
affect  performance  or  function.11  A  close 
correlation    exists,    therefore,    between 


handicaps  and  functional  limitations  of 
some  type. 

This  contrasts  sharply  with  race  and 
sex,  which  are  based  on  the  physical 
characteristics  of  skin  color  and  gender, 
not  functional  limitations.  Race  has  no 
correlation  with  innate  ability.  And  al- 
though there  may  be  some  statistical 
correlation  between  gender  and  ability  to 
perform  certain  tasks,  such  as  lifting 
heavy  weights,  no  inference  can  be 
drawn  about  the  ability  of  any  particular 
member  of  one  sex  to  perform  a  task  as 
well  as  all  members  of  the  other  sex.12 
Except  in  the  case  of  the  very  few 
activities,  such  as  modeling  clothing  or 
dramatic  acting,  for  which  it  may  be  a 
legitimate  prerequisite,13  gender  cannot 
be  presumed  to  limit  people's  functions 


10  Conditions  labeled  handicaps  and  limitations 
on  ability  are  not  precisely  coextensive.  Many 
persons  considered  handicapped  in  general  par- 
lance are  not  actually  impaired.  For  example, 
persons  with  epilepsy  whose  seizures  are  con- 
trolled by  medication,  lower  leg  amputees  with 
proper  prosthetic  devices,  and  persons  with  cos- 
metic disfigurements  may  not  have  any  limita- 
tions upon  their  ability  to  perform  tasks,  but  will 
in  all  probability  still  be  considered  handicapped. 
Moreover,  the  application  of  the  label  "handi- 
capped" is  not  at  all  a  clear  indicator  of  which 
functions  an  individual  can  or  cannot  perform;  as 
noted  in  chapter  2,  inaccurate  stereotypes  about 
the  functional  limitations  of  handicapped  per- 
sons are  a  major  problem.  In  addition,  persons 
may  be  mislabeled  as  having  an  impairment  they 
do  not  actually  have,  and  a  history  of  a  condition 
like  mental  illness  or  cancer  may  be  perceived  as 
creating  a  continuing  impairment  even  after  full 
recovery. 

11  One  part  of  the  definition  under  the  Rehabili- 
tation Act  of  1973  links  a  handicap  to  an  impair- 
ment "which  substantially  limits  one  or  more  of 
such  person's  major  life  activities."  29  U.S.C. 
§706(7)(B)  (Supp.  V  1981).  A  "developmental 
disability"  under  Federal  legislation  must  be  a 
disability  that  "results  in  substantial  functional 
limitations  in  three  or  more  of  the  following 


areas  of  major  life  activity:  (i)  self-care,  (ii) 
receptive  and  expressive  language,  (iii)  learning, 
(iv)  mobility,  (v)  self-direction,  (vi)  capacity  for 
independent  living,  and  (vii)  economic  sufficien- 
cy." 42  U.S.C.A.  §6001(7)(D)  (Supp.  IV  1980). 
Under  the  Tax  Reform  Act  of  1976,  a  handi- 
capped individual  is  any  person  with  a  physical 
or  mental  disability  "which  for  such  individual 
constitutes  or  results  in  a  functional  limitation  to 
employment,  or.  .  .which  substantially  limits 
one  or  more  major  life  activities  of  such  individu- 
al." 26  U.S.C.  §190(b)(3)  (1976). 

12  See,  e.g.,  Weeks  v.  Southern  Bell  Tel.  and  Tel. 
Co.,  408  F.2d  228,  235-36  (5th  Cir.  1969)  (company 
could  not  demonstrate  that  all  or  substantially 
all  women  could  not  lift  weight  of  30  pounds  or 
more). 

13  Under  Title  VII,  42  U.S.C.  §2000e-2(e)  (1976), 
sex-based  discrimination  is  permitted  "in  those 
circumstances  where.  .  .sex.  .  .is  a  bona  fide 
occupational  qualification  [BFOQ]  reasonably 
necessary  to  the  operation  of  that  particular 
business  or  enterprise."  The  Supreme  Court  has 
indicated  that  "the  BFOQ  exception  was  in  fact 
meant  to  be  an  extremely  narrow  exception  to 
the  general  prohibition  of  discrimination  on  the 
basis  of  sex."  Dothard  v.  Rawlinson,  433  U.S.  321, 
334  (1977). 


143 


or  activities.14  Age  is  somewhat  linked 
with  performance  because  with  ad- 
vanced age  may  come  impaired  mental 
and  physical  functioning.  Nonetheless,  it 
cannot  be  assumed  that  all  people  who 
have  reached  a  designated  age  cannot 
perform  particular  functions  or  engage 
in  particular  activities  as  well  as  people 
a  few  years  younger.  A  correlation  be- 
tween age  and  performance  exists,  but  it 
is  imprecise  and  unpredictable.  With 
handicaps,  however,  functional  limita- 
tions are  closely  correlated. 

Knowing  people's  sex,  race,  national 
origin,  religion,  or  age  does  not  allow  us 
to  judge  their  abilities  to  perform  tasks 
or  engage  in  activities.  Knowing  their 
handicaps  may  give  pertinent  informa- 
tion about  their  individual  functional 
abilities.  As  a  result,  handicap  differs 
from  other  protected  classes  in  that 
membership  in  the  class  is  frequently 
predicated  on  real,  functional  differ- 
ences— differences  that  may  need  to  be 
taken  into  account  and  accommodated  if 
its  members  are  to  participate  fully  in 
society.  The  goal  is  neither  to  exaggerate 
and  stereotype  nor  to  ignore  handi- 
capped people's  functional  limitations. 

Indefinite  Membership 

Defining  who  is  handicapped  is  highly 
arbitrary  because  of  the  artificial  nature 
of  the  concept  of  handicaps.  As  chapter  5 
explains,  the  definition  of  handicap  can 
be  no  more  precise  than  the  phenome- 
non— the  spectrum  of  human  physical 
and  mental  differences — it  seeks  to  de- 
scribe. This  inherent  difficulty  is  further 


14  Religion  has  very  little  impact  upon  function- 
al abilities  and  performance.  Except  for  particu- 
lar activities  that  are  prohibited  under  the  tenets 
of  a  religion,  a  person's  religion  has  no  conse- 
quences for  judging  a  person's  ability  to  engage 


complicated  by  the  number  of  definitions 
now  in  use.  In  addition  to  those  in 
Federal  laws,  the  States  have  several 
versions  for  different  statutory  purposes, 
such  as  education,  employment,  and 
worker's  compensation.  The  subcatego- 
ries and  sub-subcategories  of  handicap- 
ping conditions,  each  of  which  may  have 
one  or  more  definitions  of  its  own,  fur- 
ther complicate  this  profusion  of  defini- 
tions. 

Although  definitions  of  the  other  pro- 
tected classes  may  encounter  some  diffi- 
culties, they  do  not  approach  the  multi- 
plicity and  variability  that  characterize 
definitions  of  handicapped  people. 

Causation 

In  contrast  to  race,  sex,  age,  national 
origin,  and  religion,  the  causes  of  handi- 
caps are  many  and  varied.  They  may 
result  from  genetic  defects,  prenatal  in- 
juries, injuries  during  the  birth  process, 
and  postnatal  causes.  Genetic  abnormali- 
ties result  in  such  conditions  as  Down's 
syndrome  and  phenylketonuria  (PKU). 
An  individual  may  become  handicapped 
as  a  result  of  illness  or  disease,  accidents 
(including  industrial,  automobile,  and 
home),  war,  or  as  an  incident  of  old  age. 
Mental  disorders  may  result  from  child- 
hood traumas,  emotional  problems,  or 
senility.  Handicaps  are  also  linked  with 
lack  of  infant  stimulation,  poor  nutri- 
tion, inadequate  medical  care,  and  pover- 
ty. 

In  addition  to  these  and  other  known 
causes  of  handicapping  conditions,  many 
causes  of  handicaps  have  not  yet  been 

in  activities  or  perform  tasks.  Similarly,  except 
for  a  possible  correlation  with  language  skills, 
there  is  no  relation  between  national  origin  and 
ability. 


144 


discovered.  Thus,  the  causes  of  handicaps 
are  more  complex,  numerous,  and  di- 
verse than  the  relatively  straightforward 
causative  factors  involved  in  sex,  race, 
national  origin,  religion,  and  age. 

Nonexclusivity 

Some  handicapped  people  describe 
nonhandicapped  people  as  "temporarily 
able-bodied"  to  stress  the  fact  that  a 
handicapping  condition  can  strike  any- 
one and  that  there  is  no  guarantee 
against  joining  the  class  of  handicapped 
persons  in  the  future.15  According  to  one 
commentator,  "Most  disabled  people  are 
adventitiously  impaired.  That  is,  they 
became  disabled  rather  than  being  born 
that  way."16  Handicaps  are  nonexclu- 
sive: everyone  is  eligible  to  become  hand- 
icapped. In  contrast,  race  and  gender 
classes  include  specific  groups  of  people; 
those  included  will  remain  so,  and  non- 
members  will  never  be  eligible  to  become 
members.  Membership  in  a  sex  or  a  race 
is,  thus,  exclusive,  i.e.,  limited  to  a  specif- 
ic group  of  people. 

The  nonexclusivity  of  handicaps  has 
an  additional  dimension.  Handicaps 
rarely  are  directly  passed  down  from 

15  E.g.,  Frank  Bowe,  statement,  Civil  Rights 
Issues  of  Handicapped  Americans:  Public  Policy 
Implications,  a  consultation  sponsored  by  the 
U.S.  Commission  on  Civil  Rights,  Washington, 
D.C.,  May  13-14,  1980,  p.  10  (hereafter  cited  as 
Consultation);  Harlan  Hahn,  "Paternalism  and 
Public  Policy,"  Society,  vol.  20,  no.  3  (1983),  p.  44. 
14    Bowe,  Handicapping  America,  p.  34. 

17  See,  e.g,  Charles  W.  Murdock,  "Sterilization  of 
the  Retarded:  A  Problem  or  a  Solution?"  Cal.  L. 
Rev.,  vol.  62  (1974),  pp.  917-28;  Marcia  P.  Burg- 
dorf  and  Robert  L.  Burgdorf,  Jr.,  "The  Wicked 
Witch  Is  Almost  Dead:  Buck  v.  Bell  and  the 
Sterilization  of  Handicapped  Persons,"  Temp. 
L.Q.,  vol.  50,  no.  4  (1974),  p.  1008  (hereafter  cited 
as  "Sterilization  of  Handicapped  Persons"). 

18  See,  e.g.,  Murdock,  "Sterilization  of  the  Re- 


generation to  generation.  Most  handi- 
caps have  no  genetic  basis,  and  even 
hereditary  conditions  tend  to  be  based  on 
recessive  genes  that  are  not  directly 
manifested  in  succeeding  generations.17 
Most  handicapped  parents  bear  nonhan- 
dicapped children,  and  conversely,  most 
handicapped  children  are  born  to  par- 
ents who  are  not  handicapped.18  As  a 
result,  although  the  damaged  self-con- 
cepts and  lowered  expectations  resulting 
from  prejudice  and  discrimination  are 
not  passed  along  to  each  generation, 
neither  are  the  positive  approaches  to 
coping  with  handicaps.19 

Other  Differences 

Unlike  the  other  civil  rights  classes, 
the  class  of  handicapped  persons  is  sub- 
ject to  a  "medical  model"  that  suggests  a 
perception  they  are  diseased  or  sick  and 
need  help  to  get  "well."  This  perception 
negatively  influences  the  way  handi- 
capped people  are  treated  and  perceived 
and  affects  their  self-images.20 

All  too  often,  racial  and  ethnic  minori- 
ties, women,  religious  minorities,  and 
elderly  people  are  stereotyped,  although 
each  group  is  comprised  of  diverse  and 

tarded,"  p.  926;  Bowe  statement,  Consultation,  p. 
11;  "Sterilization  of  Handicapped  Persons,"  p. 
1008. 

19  "While  black  children  usually  have  two  black 
parents,  disabled  children  normally  have  two 
able-bodied  parents.  The  process  of  moving 
toward  assertiveness  and  independence,  then, 
must  begin  anew  with  each  child."  Bowe  state- 
ment, Consultation,  p.  11. 

20  Kg,  John  Gliedman  and  William  Roth,  The 
Unexpected  Minority  (New  York:  Harcourt  Brace 
Jovanovich,  1980),  pp.  18-21,  35-51,  301-03;  Kent 
Hull,  The  Rights  of  Physically  Handicapped 
People  (New  York:  Avon  Books,  1979),  p.  21;  Sar 
Levitan  and  Robert  Taggart,  Jobs  for  the  Dis- 
abled (Baltimore:  Johns  Hopkins  Univ.  Press, 
1977),  p.  xi. 


145 


unique  individuals.  Nonetheless,  the 
members  of  each  group  share  one  char- 
acteristic— race,  national  origin,  being 
female,  age,  or  membership  in  a  religion. 
Because  the  handicap  category  lumps 
together  all  those  who  do  not  fit  into  the 
"normal"  category,  membership  does  not 
require  even  a  single  common  character- 
istic. It  is  the  difference  from  any  of  the 
vast  number  of  physical  and  mental 
characteristics  considered  normal  that 
defines  membership  in  the  handicap 
class.  As  a  result,  handicapped  people 
are  an  exceedingly  heterogeneous 
group.21 

Handicaps  also  differ  from  race,  sex, 
religion,  national  origin,  and  age  in  that 
their  functional  limitations  may  be 
changed  by  advances  in  medical,  me- 
chanical, and  scientific  technology.  For 
example,  developments  in  microcompu- 
ter technology  hold  great  promise  for 
electrical  stimulation  of  otherwise  mo- 
tionless muscles,  which  could  restore 
function  to  areas  of  the  body  below  the 
damaged  vertebrae  in  cases  of  paralysis 
due  to  severing  of  the  spinal  cord.22 
Similarly,  devices  such  as  the  Kurzweil 
Reader,  which  translates  printed  materi- 
als into  vocal  sounds,  and  the  Opticon, 


21  See,  e.g.,  Prudence  Rains,  John  Kitsuse,  Troy 
Duster,  and  Eliot  Friedson,  "The  Labeling  Ap- 
proach to  Deviance,"  Issues  in  the  Classification 
of  Children,  ed.  Nicholas  Hobbs  (San  Francisco: 
Jossey-Bass,  Inc.,  1975),  vol.  1,  pp.  88,  91-92; 
Leonard  Kriegel,  "Claiming  the  Self:  The  Cripple 
as  American  Male,"  Disabled  People  as  Second- 
Class  Citizens,  eds.  Myron  Eisenberg,  Cynthia 
Griggins,  and  Richard  Duval  (New  York:  Spring- 
er Publishing  Co.,  1982),  pp.  52,  58;  Consultation, 
p.  139. 

22  "Computerized  System  Helps  A  Paralyzed 
Woman  to  Walk,"  New  York  Times,  Nov.  12, 
1982,  p.  A-23;  "Power  to  the  Disabled,"  Time, 
Dec.  13, 1982,  pp.  76-77. 

23  Harvey  Lauer  and  Leonard  Mowinski,  "Com- 
munication Aids  for  the  Blind:  Part  I:  Personal 


which  transfers  printed  letters  to  raised 
letters  that  can  be  read  by  touch,  may 
give  blind  persons  easy  and  immediate 
access  to  printed  materials.23 

The  unique  aspects  of  the  handicapped 
class  do  not,  of  course,  mean  that  handi- 
capped people  are  totally  distinct  from 
members  of  other  protected  classes. 
Many  handicapped  individuals  are  also 
women  or  members  of  racial  and  reli- 
gious minorities.  These  handicapped  per- 
sons often  face  serious  problems  of  "dou- 
ble discrimination."24  The  functional 
limitations  and  prejudice  accompanying 
handicaps  greatly  compound  and  are 
compounded  by  discrimination  encoun- 
tered by  members  of  racial  and  ethnic 
minority  groups  and  women.  With  re- 
gard to  employment  and  other  opportu- 
nities, handicapped  members  of  these 
groups  fare  much  worse  than  their  non- 
handicapped  peers.25  There  is  also  evi- 
dence that  some  advocacy  and  service 
programs  for  handicapped  people  have 
underserved  disabled  people  who  are 
members  of  minority  groups.26 

Moreover,  differences  in  the  class 
characteristics  and  dynamics  of  discrimi- 
nation faced  by  each  group  should  not 
overshadow   the    many    commonalities 

Reading  Machines,"  Braille  Forum,  vol.  18,  no.  7 
(January  1980),  p.  5;  David  A.  Yuckman,  "Em- 
ployment Discrimination  and  the  Visually  Im- 
paired," Wash,  and  Lee  L.  Rev.,  vol.  39  (1982),  pp. 
69,  88-89. 

24  Disability  Rights  Education  and  Defense 
Fund,  Inc.,  "Race  and  Disability:  A  Concept 
Paper"  (Berkeley:  1982),  pp.  2-4. 

25  Hull,  The  Rights  of  Physically  Handicapped 
People,  p.  176;  "Statement  of  Leslie  B.  Milk," 
Consultation,  pp.  127,  128. 

26  See,  e.g.,  Rosalyn  Simon,  "Reaching  Out  to  the 
Minority  Developmentally  Disabled"  (Baltimore: 
Developmental  Disabilities  Law  Project,  Inc., 
1982),  pp.  1,  17-18;  "Statement  of  Yetta  W. 
Galiber,"  Consultation,  pp.  242-46. 


146 


that  exist.  Just  as  race,  gender,  and 
national  origin  are  "immutable  charac- 
teristic [s]  determined  solely  by  the  acci- 
dent of  birth,"27  handicaps  also  tend  to 
be  permanent  characteristics28  beyond 
the  control  of  the  individual.29  All  these 
groups  have  suffered  a  history  of  serious 
discrimination.  They  share  common 
goals  of  integration  and  increased  partic- 
ipation in  society.  They  all  seek  to  elimi- 
nate arbitrary  criteria  that  have  exclud- 
ed them,  to  eliminate  stereotyping  and 
irrational  biases,  and  to  replace  the 
vestiges  of  past  discrimination  with  fair 
practices  and  procedures  that  yield  judg- 
ments based  on  individual  merit  and 
ability.  These  similarities  unite  handi- 
capped people  with  members  of  other 
disadvantaged  groups: 


27  Frontiero  v.  Richardson,  411  U.S.  677,  686 
(1973)  See  Fiss,  "A  Theory  of  Fair  Employment 
Laws,"  U.  Chi.  L.  Rev.,  vol.  38  (1971),  pp.  235,  241. 

28  Although  handicaps  tend  to  be  permanent, 
there  are  some  exceptions.  Some  disabilities  tend 
to  be  identified  only  during  school;  people  with 
learning  disabilities  or  some  mental  retardation 
may  stop  being  handicapped  when  they  finish 
school.  Also,  some  handicapping  conditions  may 
be  cured,  either  by  medical  treatment  or  other 
remedial  services.  A  case  of  mental  illness,  for 
example,  may  be  successfully  treated.  Or  surgery 
might  cure  a  particular  case  of  deafness.  Addi- 
tionally, some  authorities  have  observed  that  the 
categorization  of  a  person  as  handicapped  tends 
to  be  played  down  or  ignored  if  the  person 
achieves  great  success.  Gliedman  and  Roth,  The 
Unexpected  Minority,  pp.  28-29.  Julius  Caesar, 
Milton,  Beethoven,  Dostoevsky,  and  Edison  all 
had  serious  handicapping  conditions,  but  are 
seldom  thought  of  as  handicapped.  "We  remem- 
ber FDR's  cigarette  holder  better  than  his  wheel- 
chair." Ibid.,  p.  29.  This  contrasts  with  race 
where  the  characteristic  rarely  goes  unnoticed: 
"We  never  forget  the  blackness  of  Paul  Robeson, 
Jackie  Robinson,  and  James  Baldwin."  Ibid.,  p. 
29.  However,  the  great  majority  of  persons  who 
are  considered  handicapped  today  will  in  all 
probability  be  deemed  handicapped  tomorrow 
and  for  the  rest  of  their  lives. 


This  essential  unity  among  the  pro- 
tected classes  is  both  a  practical  and 
a  moral  imperative.  It  is  a  moral 
imperative  because  any  decent  sys- 
tem of  values  knows  no  priorities 
among  people  deprived  of  their  es- 
sential humanity.  The  only  way  to 
approach  the  eradication  of  the  evil 
of  discrimination  is  to  face  the  high 
truth  that  we  are  all  equal — black 
and  brown,  female  and  disabled.  If 
that  equality  is  not  attained  inter- 
nally among  us,  the  essential  lesson 
of  equality  we  are  trying  to  impart 
to  the  rest  of  society  will  be  lost.30 


Applying  Established  Civil 
Rights  Law 

In  prohibiting  discrimination  on  the 
basis   of  handicap,    "Congress    demon- 

29  "Handicapped  persons.  .  .lack  individual  con- 
trol over  their  handicap  status."  Gittler,  p.  970.  A 
few  conditions  sometimes  included  within  the 
definition  of  handicaps  may  be  voluntary  to  a 
greater  or  lesser  degree — drug  addiction,  alcohol- 
ism, and  obesity  are  the  most  frequently  men- 
tioned examples  (ibid.,  pp.  970,  985-86),  but  most 
handicapping  conditions  are  involuntarily  im- 
posed through  unavoidable  circumstances.  One 
State  supreme  court  has  ruled  that  handicaps 
fall  within  the  U.S.  Supreme  Court's  criteria  of 
"immutable  characteristics  determined  by  the 
accident  of  birth"  and  therefore  merit  treatment 
as  an  "inherently  suspect"  classification  for 
purposes  of  constitutional  analysis.  In  re  G.H., 
218  N.W.2d  441,  447  (N.D.  1974).  But  see  Brown  v. 
Sibley,  650  F.2d  760  (5th  Cir.  1981);  New  York 
Ass'n  for  Retarded  Children  v.  Rockefeller,  357  F. 
Supp.  752,  762-63  (E.D.N.Y.  1973),  partially  re- 
considered, 393  F.  Supp.  715,  719  (E.D.N.Y.  1975). 
See  also  Fialkowski  v.  Shapp,  405  F.  Supp.  946, 
959  (E.D.  Pa.  1975);  Lora  v.  Board  of  Educ.  of  City 
of  N.Y.,  456  F.  Supp.  1211,  1275  (E.D.N.Y.  1978); 
Frederick  L.  v.  Thomas,  408  F.  Supp.  832,  836 
(E.D.  Pa.  1976). 

30  Eleanor  Holmes  Norton,  May  1979  statement 
to  President's  Committee  on  Employment  of  the 
Handicapped,  quoted  in  Consultation,  p.  142. 


147 


strated  that  it  perceived  discrimination 
against  the  handicapped  as  fundamen- 
tally similar  to  other  forms  of  discrimi- 
nation— on  the  basis  of  race,  sex,  nation- 
al origin,  or  religious  belief — addressed 
in  Title  VII  of  the  Civil  Rights  Act  of 
1964."31 


Recognizing  the  parallels  between 
the  discrimination  suffered  by  the 
handicapped  and  other  minority 
groups,  manifested  particularly 
through  their  segregation  from  the 
rest  of  society,  members  of  Congress 
sought  to  combat  the  problem 
through  a  remedy  which  had  proven 
successful  in  the  past,  civil  rights 
legislation.32 

Section  504  of  the  Rehabilitation  Act  of 
1973,  modeled  upon  Title  VI  of  the  Civil 
Rights  Act  of  196433  and  Title  IX  of  the 
Education  Amendments  of  1972,34  has 
been  held  "part  of  the  general  corpus  of 

31  Shirey  v.  Devine,  670  F.2d  1188, 1195  (D.C.  Cir. 
1982).  See  also  Hull,  The  Rights  of  Physically 
Handicapped  People,  p.  26.  The  Commission  in 
another  context  has  sharply  distinguished  com- 
parisons of  the  forms  of  discrimination  from 
comparisons  of  the  amount  or  quality  of  discrimi- 
nation encountered  by  historically  disadvantaged 
groups.  When  various  groups  exist  in  a  situation 
of  inequality  within  a  society,  it  is  self-defeating 
to  become  embroiled  in  quarrels  over  which  is 
more  unequal  or  the  victim  of  greater  oppression. 
"It  is  far  more  productive  to  understand  the 
various  forms  and  dynamics  of  the  discrimina- 
tion that  minorities  and  women  experience  than 
to  engage  in  endless,  value-laden  debates  over 
who  is  suffering  more."  U.S.,  Commission  on 
Civil  Rights,  Affirmative  Action  in  the  1980s: 
Dismantling  the  Process  of  Discrimination  (1981), 
p.  12  (hereafter  cited  as  Affirmative  Action 
Statement). 

32  Garrity  v.  Gallen,  522  F.  Supp.  171,  205 
(D.N.H.  1981). 

33  42  U.S.C.  §2000d  (1976). 

34  20  U.S.C.  §1681  (1976). 


discrimination  law."35  In  passing  the 
statute,  "Congress  apparently  relied  on 
the  assumption  that  section  504  would  be 
enforced  as  had  previous  civil  rights 
legislation.  .  .  ,"36  From  a  legal  stand- 
point, the  relationship  between  the 
handicapped  rights  provisions  and  other 
civil  rights  laws  is  significant  because  it 
guides  courts  and  administrative  agen- 
cies in  implementing  the  law.37 

With  regard  to  many  issues,  particu- 
larly procedural  ones,  the  courts  have 
directly  applied  civil  rights  concepts, 
precedents,  and  analyses  to  cases  involv- 
ing discrimination  against  handicapped 
people.  For  example,  courts  have  cited 
legal  precedents  establishing  an  implied 
right  of  action  under  Title  VI  and  Title 
IX  to  support  a  private  right  of  action 
under  section  504. 38  Court  decisions 
establishing  that  exhaustion  of  adminis- 
trative remedies  is  not  a  necessary  pre- 
requisite to  filing  a  civil  rights  court  suit 

35  New  York  State  Ass'n  for  Retarded  Children 
v.  Carey,  612  F.2d  644,  649  (2d  Cir.  1979). 

36  Garrity  v.  Gallen,  522  F.  Supp.  171,  205 
(D.N.H.  1981). 

37  Hull,  The  Rights  of  Physically  Handicapped 
People,  pp.  25-26. 

38  See  Pushkin  v.  Regents  of  Univ.  of  Colo.,  658 
F.2d  1372,  1379-80  (10th  Cir.  1981);  Kling  v. 
County  of  Los  Angeles,  633  F.2d  876  (9th  Cir. 
1980);  NAACP  v.  Medical  Center,  Inc.,  599  F.2d 
1247  (3d  Cir.  1979);  Davis  v.  Southeastern  Com- 
munity College,  574  F.2d  1158  (4th  Cir.  1978), 
rev'd  on  other  grounds,  442  U.S.  397  (1979);  Leary 
v.  Crapsey,  566  F.2d  863  (2d  Cir.  1977);  United 
Handicapped  Fed'n  v.  Andre,  558  F.2d  413  (8th 
Cir.  1977);  Lloyd  v.  Regional  Transp.  Authority, 
548  F.2d  1277  (7th  Cir.  1977);  Camenisch  v. 
University  of  Tex.,  616  F.2d  127,  131  (5th  Cir. 
1980),  vacated  on  other  grounds,  451  U.S.  390 
(1981);  Kampmeier  v.  Nyquist,  553  F.2d  296  (2d 
Cir.  1977);  Doe  v.  New  York  Univ.,  666  F.2d  761 
(2d  Cir.  1981);  Miener  v.  State  of  Mo.,  673  F.2d 
969  (8th  Cir.  1982). 


148 


have  been  held  applicable  to  section  504 
cases.39  Generally,  courts  have  analyzed 
such  terms  as  "Federal  financial  assis- 
tance" and  "program  or  activity"40  and 
such  issues  as  the  availability  of  back- 
pay, monetary  damages,  injunctive  re- 
lief, and  attorney's  fees41  by  applying  to 
section  504  the  principles  established  in 
Title  VI  and  Title  IX  cases.  Title  VI  and 
constitutional  desegregation  cases  have 
served  as  a  basis  for  decisions  holding 
that  handicapped  children  have  a  right, 
under  section  504,  to  a  free  appropriate 
public  education.42 

Although  the  body  of  previous  civil 
rights  laws  has  provided  a  frame  of 
reference  for  dealing  with  handicap  dis- 
crimination issues,  the  legal  approaches 
developed  in  race,  sex,  national  origin, 
and  religious  discrimination  cases  can- 
not be  applied  uniformly  and  mechani- 
cally. Handicap  discrimination  and,  as  a 
result,  its  remedies  differ  in  important 
ways  from  other  types  of  discrimination 
and  their  remedies.  As  a  Federal  court 
has  observed: 


Contrary  to  the  assumption  of 
Congress,  the  Title  VI  and  Title  IX 
models  were  not  automatically 
adaptable  to  the  problem  of  discrimi- 


39  See  Pushkin  v.  Regents  of  Univ.  of  Colo.,  658 
F.2d  1372,  1381  (10th  Cir.  1981);  Kling  v.  County 
of  Los  Angeles,  633  F.2d  876,  879  (9th  Cir.  1980); 
Miener  v.  State  of  Mo.,  673  F.2d  969,  978  (8th  Cir. 
1982). 

40  Ferris  v.  University  of  Tex.  at  Austin,  558  F. 
Supp.  536,  539-43  (W.D.  Tex.  1983);  Brown  v. 
Sibley,  650  F.2d  760,  767-69  (5th  Cir.  1981); 
United  States  v.  Baylor  Univ.  Medical  Center, 
Civil  Action  No.  CA-3-82-0453-D  (N.D.  Tex., 
Order  of  June.  7, 1983). 

41  Gelman  v.  Department  of  Educ,  544  F.  Supp. 
651,  653-54  (D.  Col.  1982);  Patton  v.  Dumpson, 
498  F.  Supp.  933,  937-39  (S.D.N.Y.  1980);  Pomer- 


nation  against  the  handicapped,  but 
involved  a  very  different  analytical 
undertaking.  Indeed,  attempting  to 
fit  the  problem  of  discrimination 
against  the  handicapped  into  the 
model  remedy  for  race  discrimina- 
tion is  akin  to  fitting  a  square  peg 
into  a  round  hole.  .  .  .43 


Legal  Standards  Defining 
Discrimination 

Civil  rights  case  law  has  developed  two 
sets  of  legal  standards  for  determining 
when  race,  national  origin,  or  sex  dis- 
crimination has  occurred.  The  first,  in- 
tentional discrimination,  examines  the 
state  of  mind  of  the  actor.  The  second, 
"effects"  discrimination,  depends  on  the 
consequences  of  the  challenged  act.44 

Intentional  discrimination  occurs 
when  a  decision  includes  a  purposeful, 
nonremedial  consideration  of  the  class 
characteristic.  This  consideration  might 
be  made  openly,  as  in  State  statutes  that 
mandated  segregating  schools  by  race,  or 
it  might  be  hidden  in  the  decisionmaking 
process,  as  in  school  officials'  decisions  to 
draw  attendance  zones  in  a  way  that 
segregates  by  race.  In  the  latter  situa- 
tion, civil  rights  law  draws  on  various 

antz  v.  County  of  Los  Angeles,  674  F.2d  1288, 
1290-91  (9th  Cir.  1982);  United  Handicapped 
Fed'n  v.  Andre,  622  F.2d  342,  348  (8th  Cir.  1980); 
Disabled  in  Action  v.  Mayor  and  City  Council, 
685  F.2d  881,  885-87  (4th  Cir.  1982);  Doe  v. 
Marshall,  622  F.2d  118, 119-20  (5th  Cir.  1980). 

42  New  Mexico  Ass'n  for  Retarded  Citizens  v. 
State  of  N.M.,  678  F.2d  847,  853-55  (10th  Cir. 
1982).  See  Board  of  Educ.  v.  Rowley,  102  S.Ct. 
3034  (1982). 

43  Garrity  v.  Gallen,  522  F.  Supp.  171,  206 
(D.N.H.  (1981). 

44  See  Affirmative  Action  Statement,  pp.  16-17. 


149 


objective  facts  to  infer  the  existence  of 
discriminatory  intent.45 

Effects  discrimination  occurs  when  an 
action  or  criterion  has  a  disproportionate 
effect  based  on  race,  national  origin,  or 
sex  and  cannot  be  justified  by  a  legiti- 
mate reason,  such  as  the  safety  and 
efficiency  of  an  employer's  operations.46 
This  standard  compares  the  effect  of  an 
employment  decision  on  minorities  or 
women  to  its  effect  on  whites  or  men. 
Rather  than  examining  the  employer's 
subjective  intent,  the  effects  test  focuses 
on  whether  the  selection  criteria  reflect 
skills  needed  to  perform  the  job  in  ques- 
tion. It  would  question,  for  example, 
whether  a  minimum  height  requirement 
of  5'8", which  disproportionately  excludes 
women  and  certain  racial  and  ethnic 
groups,  is  necessary  to  the  performance 
of  a  safety  officer's  job.47    This  standard 

45  See,  e.g.,  Washington  v.  Davis,  426  U.S.  229, 
238-40  (1976);  McDonnell  Douglas  Corp.  v. 
Green,  411  U.S.  792  (1973). 

46  See  generally,  Affirmative  Action  Statement; 
Albemarle  Paper  Co.  v.  Moody,  422  U.S.  405,  418, 
425-34  (1975).  Although  this  example  of  business 
necessity  involves  a  statute  prohibiting  employ- 
ment discrimination,  other  civil  rights  statutes 
also  use  effects  standards,  including  those  prohi- 
biting discrimination  in  Federal  financial  assis- 
tance (see  Charles  Abernathy,  "Title  VI  and  the 
Constitution:  A  Regulatory  Model  for  Defining 
Discrimination,"  Geo.  L.J.,  vol.  70  (1981),  p.  1;  but 
see  The  Guardians  Ass'n  v.  Civil  Service  Comm'n, 
633  F.2d  232  (2d  Cir.  1980),  cert,  granted,  no.  81- 
431  (Jan.  11,  1982),  certain  kinds  of  educational 
assistance  (Board  of  Educ.  of  City  of  New  York  v. 
Harris,  444  U.S.  130  (1979))  and  housing  (see 
Robinson  v.  12  Lofts  Realty,  Inc.,  610  F.2d  1032, 
1036-37  (2d  Cir.  1979)). 

47  The  courts  have  found  such  height  require- 
ments illegal  when  they  are  insufficiently  job 
related.  See  Dothard  v.  Rawlinson,  433  U.S.  321 
(1977);  Smith  v.  City  of  East  Cleveland,  520  F.2d 
492,  494-97  (6th  Cir.  1975);  Bowe  v.  Colgate 
Palmolive  Co.,  416  F.2d  711,  718  (7th  Cir.  1969). 

48  International  Bhd.  of  Teamsters  v.  United 
States,  431  U.S.  324,  335-36,  n.  15  (1977). 


is  often  referred  to  as  "disparate  impact" 
to  distinguish  it  from  the  "disparate 
treatment"  analysis  applied  to  instances 
of  intentional  discrimination.48 

Disagreement,  inconsistency,  and  con- 
fusion have  arisen  over  whether  these 
legal  standards  apply  to  cases  of  handi- 
cap discrimination.  One  United  States 
court  of  appeals  has  concluded  that  the 
jurisprudence  and  precedents  pertaining 
to  disparate  treatment  and  disparate 
impact  analysis  under  Title  VII  of  the 
Civil  Rights  Act  of  1964  directly  apply  to 
handicap  discrimination.49  Another  Fed- 
eral court  of  appeals,  however,  has  ruled 
that  neither  of  these  prior  civil  rights 
standards  applies  to  section  504  cases 
and  the  statute  imposes  its  own  unique 
criteria.50  Legal  commentary  has  also 
been  inconsistent  and  unclear.51  Addi- 
tional   confusion    has    resulted    when 

49  Prewitt  v.  United  States  Postal  Service,  662 
F.2d  292,  305-07,  n.  19  (5th  Cir.  1981). 

50  Pushkin  v.  Regents  of  Univ.  of  Colo.,  658  F.2d 
1372,  1385  (10th  Cir.  1981)  ("First,  the  individual 
is  required  to  show  that  he  is  otherwise  qualified 
for  the  position;  second,  the  individual  must  show 
that  even  though  he  is  otherwise  qualified,  he 
was  rejected  for  the  position  solely  on  the  basis  of 
his  handicap.") 

51  Some  authorities  have  argued  that  judicial 
precedent  defining  other  types  of  discrimination 
provides  inadequate  guidance  for  dealing  with 
handicap  discrimination.  E.g.,  Note,  "Accommo- 
dating the  Handicapped:  The  Meaning  of  Dis- 
crimination Under  Section  504  of  the  Rehabilita- 
tion Act,"  N.  Y.  U.  L.  Rev.,  vol.  55  (1980),  pp.  881, 
882  (hereafter  cited  as  "Accommodating  the 
Handicapped").  See  also  Gittler,  pp.  953,  973-81. 
Other  commentators  have  argued  that  prior  civil 
rights  decisions  provide  a  good  starting  point  and 
are  highly  instructive  in  resolving  handicap 
discrimination  cases.  E.g.,  Jonathan  Lang,  "Pro- 
tecting the  Handicapped  from  Employment  Dis- 
crimination: The  Job-Relatedness  and  Bona  Fide 
Occupational  Qualification  Doctrines,"  DePaulL. 
Rev.,  vol.  27  (1978),  pp.  989,  990,  1011  (hereafter 
cited  as  Lang). 


150 


courts  have  sought  to  apply  traditional 
intent  and  effects  tests  without  clearly 
understanding  the  distinctions  among 
intent,  blanket  exclusions,  and  dispro- 
portionate impact. 

The  issue  of  intent  has  caused  particu- 
lar problems.  One  court  has  held  that: 
"[i]n  an  intentional  discrimination 
claim,  the  plaintiff  must  show  that  the 
defendant  intentionally  discriminated 
against  the  plaintiff  because  of  the  de- 
fendant's own  personal  bias  against 
handicapped  persons."52  Another  court 
rejected  an  intent  test  and  adopted  an 
effects  test  based  on  the  following  rea- 
soning: 


It  would  be  a  rare  case  indeed  in 
which  a  hostile  discriminatory  pur- 
pose or  subjective  intent  to  discrimi- 
nate solely  on  the  basis  of  handicap 
could  be  shown.  Discrimination  on 
the  basis  of  handicap  usually  results 
from  more  invidious  causative  ele- 
ments and  often  occurs  under  the 
guise  of  extending  a  helping  hand  or 
a  mistaken,  restrictive  belief  as  to 
the  limitations  of  handicapped  per- 


sons 


53 


In  both  cases,  the  courts  apparently 
misunderstood  the  nature  of  the  intent 
necessary  for  a  finding  of  intentional 
discrimination.  The  standard  turns  on 
whether  the  defendant  intended  to  treat 
people  differently  by  using  a  classifica- 

■  Bey  v.  Bolger,  540  F.  Supp.  910,  925  (E.D.  Pa. 
1982). 

53  Pushkin  v.  Regents  of  Univ.  of  Colo.,  658  F.2d 
1372, 1385  (10th  Cir.  1981). 

54  See,  e.g.,  Eric  Schapper,  "Two  Categories  of 
Discriminatory  Intent,"  Harv.  Civ.  Rts.-Civ.  Lib. 
L.R.,  vol.  17  (1982),  pp.  31,  47. 

55  Connecticut  Inst,  for  the  Blind  v.  Connecticut 
Comm'n  on  Human  Rights  and  Opportunities, 
176  Conn.  88,  405  A.2d  618,  621  (1978). 


tion  prohibited  by  law,  not  why  the 
defendant  decided  to  take  the  action.54 
There  is  no  requirement,  for  example,  in 
school  desegregation  cases  that  plaintiffs 
must  trace  decisions  to  segregate  schools 
by  race  to  personal  bias,  hostility,  or 
negative  stereotyping.  Proof  of  a  defen- 
dant's malevolence,  paternalism,  or  prej- 
udice, therefore,  should  not  be  necessary 
to  show  intentional  discrimination 
against  handicapped  people. 

Judicial  confusion  and  disagreement 
have  also  developed  with  regard  to  exclu- 
sionary classifications — disability  catego- 
ries or  other  selection  criteria  that  ex- 
clude a  particular  class  of  handicapped 
people.  In  holding  that  a  lower  court  had 
erred  in  failing  to  apply  an  intentional 
discrimination  standard,  one  State  su- 
preme court  ruled  that  a  requirement  of 
"normal  vision"  serves  "as  a  direct  dis- 
qualification of  anyone  with  a  visual 
handicap,  in  the  same  way  that  an 
advertisement  of  jobs  for  men  only 
serves  automatically  to  disqualify  wom- 
en. .  .  .Blanket  exclusions,  no  matter 
how  well  motivated,  fly  in  the  face  of  the 
command  to  individuate  that  is  central 
to  fair  employment  practices."55  The 
higher  court  held  that  the  criterion  is 
permissible  only  if  it  constitutes  a  bona 
fide  occupational  qualification,  which 
under  the  State  antidiscrimination  stat- 
ute was  a  "stringent  and  narrow"  excep- 
tion.56 In  another  case,  however,  a 
Federal  court  of  appeals  applied  a  dispro- 

56  Id.  at  621.  The  BFOQ  standard  in  the  State 
law  required  a  showing  that  "no  member  of  the 
class  excluded  is  physically  capable  of  perform- 
ing the  tasks  required  by  the  job."  Id.  at  621. 
Some  have  concluded  that  a  BFOQ  defense 
cannot  be  applied  to  a  handicap  discrimination 
situation,  e.g.,  Gittler.  pp.  977-81,  while  others 


151 


portionality  version  of  the  effects  test  to 
a  situation  in  which  a  man  was  found 
"medically  unsuitable"  for  a  post  office 
job  because  he  had  a  mobility  limitation 
of  the  left  shoulder.57  This  led  the  court 
to  the  ironic  conclusion  that  the  plaintiff 
had  to  prove  "a  disproportionate  impact 
on  persons  having  the  handicap"  of  what 
was,  in  effect,  an  express  exclusion  of 
those  with  such  a  handicap.58 

Neither  of  these  cases  offers  a  satisfac- 
tory approach  for  analyzing  eligibility 
criteria  that  exclude  groups  of  handi- 
capped people.  Because  of  the  relation 
between  handicaps  and  functional  abili- 
ty, not  all  criteria  that  exclude  groups  of 
handicapped  people  constitute  intention- 
al discrimination.  But  analysis  of  dispro- 
portionate effects  is  inappropriate  when 
an  eligibility  standard  on  its  face  ex- 
cludes certain  handicapped  people.  Be- 


have argued  that  BFOQ  analysis  is  appropriate. 
E.g.,  Lang,  pp.  1010-11.  In  some  articles,  the 
distinction  between  BFOQ  analysis  and  the  lesser 
standard  of  job  relatedness  seems  to  be  blurred  or 
ignored.  E.g.,  David  Yuckman,  "Employment 
Discrimination  and  the  Visually  Impaired," 
Wash.  &  Lee  L.  Rev.,  vol.  39  (1982),  pp.  69,  76-77, 
83-84. 

57  Prewitt  v.  United  States  Postal  Service,  662 
F.2d  292,  305-307  (5th  Cir.  1981). 

58  Id.  at  310. 

59  In  Jennings  v.  Alexander,  518  F.  Supp.  877 
(M.D.  Tenn.  1981),  the  court  ruled  that  an 
adverse  impact  standard  did  not  require  statisti- 
cally identical  results  for  handicapped  and  non- 
handicapped  persons  as  long  as  the  program  at 
issue  was  equally  open  and  accessible  to  both 
groups.  Id.  at  883. 

60  See,  e.g.,  Prewitt  v.  United  States  Postal 
Service,  662  F.2d  292,  305-10  (5th  Cir.  1981);  Bey 
v.  Bolger,  540  F.  Supp.  910,  924-25  (E.D.  Pa. 
1982);  "Accommodating  the  Handicapped,"  pp. 
886-94. 

61  See  chap.  6  in  the  section  entitled  "Exclusion- 
ary Classifications."  A  traditional  form  of  dispa- 
rate impact  analysis  involving  disproportionality 
is  explicitly  used  in  the  regulations  of  the  Depart- 
ment of  Health  and  Human  Services  for  the 


tween  these  two  alternatives  the  courts 
must  forge  a  workable  standard  for  exa- 
mining handicap  discrimination.59  The 
courts  must  also  grapple  with  the  effect 
that  concepts  like  reasonable  accommo- 
dation and  undue  hardship  have  on 
evidentiary  burdens  and  substantive 
analyses  within  traditional  civil  rights 
frameworks.60 

Some  generally  accepted  principles 
have  begun  to  emerge.  Among  these  are 
the  applicability  to  handicap  discrimina- 
tion of  some  form  of  an  effects  test  and  a 
business-  or  program-necessity  stan- 
dard61 and  the  need  for  stringent  scruti- 
ny of  blanket  exclusions  using  disability 
category  labels.62  These  parallels  to 
other  civil  rights  law  should  not,  how- 
ever, obscure  the  complexities  of  trying 
to  apply  legal  standards  developed  in 

enforcement  of  section  504  of  the  Rehabilitation 
Act.  In  regard  to  postsecondary  education  pro- 
grams, the  regulations  provide  that  a  recipient  of 
Federal  funds  "[m]ay  not  make  use  of  any  test  or 
criterion  for  admission  that  has  a  disproportion- 
ate, adverse  effect  on  handicapped  persons  or  any 
class  of  handicapped  persons"  unless  the  test  or 
criterion  has  been  validated  as  measuring  likeli- 
hood of  success  in  the  program  and  no  other 
alternative  tests  or  criteria  are  available.  45 
C.F.R.  §84.42(b)(2)  (1982).  Similarly,  employers 
subject  to  section  504  are  prohibited  from  using 
"any  employment  test  or  other  selection  criterion 
that  screens  out  or  tends  to  screen  out  handi- 
capped persons  or  any  class  of  handicapped 
persons"  unless  the  test  or  criterion  is  shown  to 
be  job  related  to  the  position  in  question  and  no 
alternative  tests  or  criteria  are  available.  45 
C.F.R.  §84. 13(a)  (1982).  In  an  "Appended  Analysis 
of  the  Final  Regulation,"  the  Department  states 
that  this  latter  provision  "is  an  application  of  the 
principle  established  under  Title  VII  of  the  Civil 
Rights  Act  of  1964  in  Griggs  v.  Duke  Power 
Company,  401  U.S.  424  (1971)."  45  C.F.R.  app.  A, 
subpt.  B,  17,  p.  300  (1982). 

62  See  chap.  6  in  the  section  entitled  "Exclusion- 
ary Classification." 


152 


other  contexts  to  discrimination  on  the 
basis  of  handicap. 


capped  employees,  the  Supreme  Court  of 
Washington  observed: 


Neutrality  Toward  Class 
Characteristics 

One  major  civil  rights  concept  not 
neatly  transferable  to  handicap  discrimi- 
nation is  the  requirement  of  neutrality 
toward  the  class  characteristic,  such  as 
being  "colorblind."  With  regard  to  race, 
sex,  and  national  origin,  antidiscrimina- 
tion laws  aim  to  eliminate  consideration 
of  race,  sex,  and  national  origin  from 
decisions  regarding  rights,  benefits,  and 
services,63  with  the  long-term  goal  of 
producing  a  society  that  makes  differ- 
ences in  race,  gender,  and  ancestry  bene- 
ficial sources  of  diversity  instead  of  ob- 
jects of  invidious  discrimination.  Because 
race,  sex,  and  national  origin  have  no 
direct  connection  with  functional  abili- 
ties,64 this  neutrality  doctrine  prohibits 
consideration  of  these  characteristics  ex- 
cept in  the  remedial  context  of  affirma- 
tive action. 

The  handicap  classification,  in  con- 
trast, encompasses  real  functional  limi- 
tations. The  goal  of  handicap  antidiscri- 
mination law,  therefore,  cannot  be  com- 
plete neutrality  or  indifference  to  the 
defining  characteristic.  The  societal  ob- 
jective of  full  participation  entails  con- 
sidering and  accommodating  differing 
physical  and  mental  functional  abilities. 
In  a  decision  requiring  reasonable  ac- 
commodation  to   the   needs   of  handi- 


63  Affirmative  Action  Statement,  p.  2. 

64  The  one  exception  to  the  statement  is  for  bona 
fide  occupational  qualifications.  In  an  employ- 
ment context,  the  use  of  criteria  of  religion,  sex, 
or  national  origin  may  be  justified  only  by 
demonstrating  that  they  are  a  bona  fide  occupa- 
tional qualification  (BFOQ)  "reasonably  neces- 


Legislation  dealing  with  equality  of 
sex  or  race  was  premised  on  the 
belief  that  there  were  no  inherent 
differences  between  the  general  pub- 
lic and  those  persons  in  the  suspect 
class.  The  guarantee  of  equal  em- 
ployment opportunities  for 
the.  .  .handicapped  is  far  more  com- 
plex. 

Identical  treatment  may  be  a  source 
of  discrimination  in  the  case  of  the 
handicapped,  whereas  different 
treatment  may  eliminate  discrimi- 
nation against  the  handi- 
capped. .  .  ,65 

Unlike  race,  gender,  and  national  origin, 
which  should  be  considered  only  in  reme- 
dial decisionmaking  contexts,  the  char- 
acteristics that  define  handicap  as  a 
classification — the  spectrum  of  human 
abilities  and  individual  functional  limi- 
tations— must  routinely  be  taken  into 
account  to  avoid  discriminating  on  the 
basis  of  handicap. 

There  is,  however,  one  major  parallel 
to  colorblindness  in  handicap  law:  exclu- 
sionary selection  criteria  that  use  the 
status  category  "handicapped"  or  tradi- 
tional disability  labels,  such  as  blind, 
deaf,  mentally  retarded,  epileptic,  and  so 
on.66  Because  these  terms  convey  biased 
and  stigmatizing  information  about  func- 

sary  to  the  normal  operation  of  that  particular 
business  or  enterprise.  .  .  ."  42  U.S.C.  §2000e- 
2(e)  (1976).  No  BFOQ  defense  is  available  for 
employment  discrimination  on  the  basis  of  race. 

65  Holland  v.  Boeing  Co.,  90  Wash.  2d  384,  583 
P.2d  621,  623  (1978). 

66  See  chap.  1  in  the  section  entitled  "Statistical 


153 


tional  limitations,  their  use  should  be 
confined  to  remedial  contexts.  With  re- 
gard to  handicap  discrimination,  then, 
neutrality  doctrines  apply  to  eliminating 
traditional  handicap  labels  from  all  but 
remedial  decisionmaking,  but  not  to 
making  accurate  assessments  of  individ- 
ual functional  abilities  needed  for  appro- 
priate accommodations  permitting  full 
participation. 

Affirmative  Action  and 
Nondiscrimination 

Based  on  its  understanding  of  estab- 
lished civil  rights  law  and  policy,  this 
Commission  has  urged  a  problem-reme- 
dy approach  to  affirmative  action  that 
defines  this  concept  as  "active  efforts 
that  take  race,  sex,  and  national  origin 
into  account  for  the  purpose  of  remedy- 
ing discrimination."67  This  definition 
justifies  departing  from  the  principle  of 
neutrality  toward  race,  gender,  and  na- 
tional origin  in  remedial  contexts  only.68 
It  is  the  systemic  nature  and  pervasive 
extent  of  race,  sex,  and  national  origin 
discrimination  that  make  affirmative 
action  essential.  Because  race,  sex,  and 
national  origin  discrimination  is  wide- 
spread, entrenched,  and  can  perpetuate 
itself  even  absent  intentional  discrimina- 
tion, colorblindness  and  neutrality 
toward  gender  and  national  origin  are 
insufficient  for  remedying  many  current 
discriminatory  actions  and  the  effects  of 
past  discrimination. 


Overview  of  Handicaps"  and  chap.  6  in  the 
section  entitled  "Exclusionary  Classifications." 

67  Affirmative  Action  Statement,  p.  3. 

68  Justice  Blackmun  in  Regents  of  the  Univ.  of 
Cal.  v.  Bakke,  438  U.S.  265,  407  (Justice  Black- 
mun concurring  in  part,  dissenting  in  part)  aptly 
summarized  the  superficially  paradoxical  aspects 
of  affirmative  action:  "In  order  to  get  beyond 
racism,  we  must  first  take  account  of  race." 


However,  because  established  civil 
rights  neutrality  doctrines  do  not  fully 
apply  to  handicap  discrimination,  nei- 
ther can  the  totality  of  established  con- 
cepts of  affirmative  action.  The  actual 
individual  functional  limitations  that 
characterize  handicaps  must  be  taken 
into  account  as  part  of  the  duty  not  to 
discriminate  on  the  basis  of  handicap, 
regardless  of  any  affirmative  action  obli- 
gations. Awareness  of  and  accommoda- 
tions to  real  physical  and  mental  differ- 
ences, unlike  "color  consciousness,"  is 
desirable  and  necessary  in  other  than 
remedial  contexts.69  As  a  result,  defini- 
tions of  affirmative  action  in  handicap 
law  must  respond  to  this  important  way 
in  which  handicap  discrimination  differs 
from  race,  sex,  and  national  origin  dis- 
crimination. 

Failing  to  appreciate  these  intricacies 
can  lead  to  confusion  about  the  meaning 
of  affirmative  action  and  its  relationship 
to  nondiscrimination  requirements,  par- 
ticularly reasonable  accommodation. 
Even  the  United  States  Supreme  Court 
has  insufficiently  stressed  the  significant 
difference  between  analyzing  handicap 
discrimination  and  analyzing  other  types 
of  discrimination,  and  as  a  result,  affir- 
mative action.  Commentators  and  other 
courts  have  criticized  the  Court's  choice 
of  terminology  in  Southeastern  Commu- 
nity College  v.  Davis,70  which  is  dis- 
cussed in  chapter  6.71  In  this  unanimous 
opinion,  the  Supreme  Court  first  distin- 

69  But  as  the  discussion  of  neutrality  also  made 
clear,  such  awareness  and  accommodations  do 
not  require  consideration  of  traditional  handicap 
status  categories,  except  for  remedial  purposes. 

70  442  U.S.  397,  410-13  (1979). 

71  See  Dopico  v.  Goldschmidt,  687  F.2d  644,  653 
(2d  Cir.  1982);  Note,  "Accommodating  The  Hand- 
icapped: Rehabilitating  Section  504  After  South- 


154 


guished  "even  handed  treatment  of  qua- 
lified handicapped  persons"  from  "affir- 
mative efforts  to  overcome  the  disabili- 
ties caused  by  handicaps."72  Having 
sharply  distinguished  between  affirma- 
tive action  and  nondiscrimination,  and 
implied  that  affirmative  action  can  nev- 
er be  required  unless  the  handicap  civil 
rights  statute  commands  affirmative  ac- 
tion,73 the  Court  then  stated:  "We  do  not 
suggest  that  the  line  between  a  lawful 
refusal  to  extend  affirmative  action  and 
illegal  discrimination  against  handi- 
capped people  will  always  be  clear."74 
Apparently,  reasonable  accommodation 
doctrines  fit  along  this  undefined  line, 
because  the  Court  discusses  accommoda- 
tion first  as  an  affirmative  action  re- 
quirement75 and  two  pages  later  dis- 
cusses accommodation  as  a  nondiscrimi- 
nation requirement.76 

These  inconsistencies  and  contradic- 
tions appear  to  arise  because  the  Court 
simply  transposed  established  concepts 
of  affirmative  action  and  nondiscrimina- 
tion to  handicap  law  and  failed  to  clarify 
the  relationships  among  handicap  dis- 
crimination, reasonable  accommodation, 
and  affirmative  action.  Appropriately 
responding  to  the  actual  functional  limi- 


eastern,"  Colum.  L.  Rev.,  vol.  80  (1980),  pp.  171, 
185-86;  Note,  "Accommodating  The  Handi- 
capped," N.Y.U.  L.  Rev.,  vol.  55  (1980),  p.  880. 
Construed  literally,  the  Court's  statement  that 
"Congress  understood  that  accommodation  of  the 
needs  of  handicapped  individuals  may  require 
affirmative  action  and  knew  how  to  provide  for  it 
in  those  instances  where  it  wished  to  do  so,"  441 
U.S.  at  411,  would  impose  on  the  Federal  Govern- 
ment and  Federal  contractors  a  substantively 
greater  duty  of  accommodation  than  that  im- 
posed on  recipients  of  Federal  financial  assis- 
tance. There  is  little  apparent  justification  for 
such  an  approach. 

72  442  U.S.  410  (1979). 

73  Id.  at  410-12. 


tations  that  attend  handicaps  is  an  es- 
sential part  of  eliminating  handicap  dis- 
crimination. As  a  result,  neutrality  doc- 
trines do  not  carry  over  from  race,  sex, 
and  national  origin  cases  to  handicap 
cases.  Because  the  concept  of  affirmative 
action  bases  its  exception  to  neutrality 
doctrines  on  the  nature  and  extent  of 
discrimination,  affirmative  action  can 
only  be  defined  after  discrimination  and 
neutrality  issues  are  understood. 

Handicap  nondiscrimination  laws 
mandate  the  elimination  of  all  conduct, 
policies,  and  practices  covered  by  such 
laws  that  unnecessarily  disadvantage 
people  because  of  their  handicaps.  The 
nature  of  handicap  discrimination  dis- 
cussed in  chapters  5  and  6  has  made 
clear,  a  key  component  of  nondiscrimina- 
tion toward  handicapped  people  is  the 
requirement  of  reasonable  accommoda- 
tion. The  nondiscrimination  mandate 
and  its  reasonable  accommodation  com- 
ponent address  acts,  policies,  and  barri- 
ers that  currently  operate  to  exclude, 
segregate,  or  impede  handicapped  peo- 
ple. 

Affirmative  action,  on  the  other  hand, 
in  the  context  of  handicap  discrimina- 
tion, refers  to  some  effort  beyond  nondis- 

74  Id.  at  412. 

75  "A  comparison  of  [sections  501,  503  and  504  of 
the  Rehabilitation  Act  of  1973]  demonstrates  that 
Congress  understood  accommodation  of  the  needs 
of  handicapped  individuals  may  require  affirma- 
tive action  and  knew  how  to  provide  for  it  in 
those  instances  where  it  wished  to  do  so."  Id.  at 
411. 

76  "Thus,  situations  may  arise  where  a  refusal  to 
modify  an  existing  program  might  become  unrea- 
sonable and  discriminatory.  Identification  of 
these  instances  where  a  refusal  to  accommodate 
the  needs  of  a  disabled  person  amounts  to 
discrimination  against  the  handicapped  con- 
tinues to  be  an  important  responsibility  of 
HEW."  Id.  at  412-13. 


155 


crimination  and  reasonable  accommoda- 
tion to  increase  the  participation  of 
handicapped  people.  It  does  not  focus 
upon  eliminating  current  discrimination, 
but  rather  on  removing  the  present 
effects  of  past  discrimination.  The  prem- 
ise underlying  such  an  affirmative  action 
requirement  is  that  the  class  of  handi- 
capped persons  has  been  so  seriously 
underrepresented  in  the  past,  either  by 
the  particular  individual  or  agency  in- 
volved or  on  a  broader  societal  basis,  that 
extra  efforts  are  required  to  achieve  an 
equitable  level  of  participation.  Typically 
this  takes  the  form  of  outreach  and 
recruiting  efforts  designed  to  increase 
the  numbers  of  handicapped  applicants 
and  participants.  In  contrast  to  nondis- 
crimination requirements  that  seek  to 
eliminate  present  disadvantages  placed 
on  people  because  of  their  handicaps, 
affirmative  action  seeks  out  people — or 
perhaps  offers  them  some  advantage — 
because  they  are  a  member  of  the  class  of 
handicapped  persons.  The  nondiscrimi- 
nation requirement  of  reasonable  accom- 
modation enables  fair  and  equal  consid- 
eration of  a  handicapped  person's  abili- 
ties. Affirmative  action  gives  special  in- 
centives for  getting  handicapped  people 
to  participate,  in  order  to  ameliorate  the 
ongoing  effects  of  past  exclusionary  prac- 
tices. 

Reasonable  accommodation  is  clearly  a 
nondiscrimination  requirement,  as  are 
the  removal  of  other  impediments  that 
exclude  groups  of  handicapped  people 
such  as  architectural  barriers,  unjusti- 
fied eligibility  criteria,  and  exclusionary 
classifications.  All  of  these  address  cur- 
rent discrimination  by  prohibiting  un- 
lawful   disadvantaging   of  handicapped 

"  E.g.,  Shirey  v.  Devine,  670  F.2d  1188  (D.C.  Cir. 
1982). 

156 


persons.  Recruitment  efforts  targeted 
toward  handicapped  people,  special  con- 
sideration in  hiring  and  promotion,  and 
training  for  particular  groups  of  handi- 
capped individuals,  however,  because 
they  are  designed  to  promote  increased 
participation  by  handicapped  people  as  a 
partial  remedy  for  their  underinvolve- 
ment  in  the  past,  are  examples  of  affir- 
mative action. 

Of  course,  affirmative  action  and  non- 
discrimination requirements  share  the 
overall  goal  of  promoting  full  participa- 
tion of  handicapped  persons,  and  the 
concepts  do  not  always  sharply  diverge. 
The  requirement  of  affirmative  action 
has,  in  fact,  been  interpreted  to  incorpo- 
rate nondiscrimination  as  an  essential 
prerequisite.77  Affirmative  action  to  in- 
crease participation  of  handicapped  per- 
sons would  be  meaningless  if  such  efforts 
were  then  frustrated  by  continuing  dis- 
crimination on  the  basis  of  handicaps.  In 
spite  of  their  interrelationship,  however, 
the  conceptual  distinction  between  affir- 
mative action,  on  the  one  hand,  and 
nondiscrimination  and  reasonable  ac- 
commodation, on  the  other,  can  help  to 
avoid  some  of  the  confusion  and  analytic 
inconsistencies  that  have  arisen. 

Use  of  Statistics 

Measurements  of  numerical  represen- 
tation have  traditionally  been  an  impor- 
tant feature  of  civil  rights  analysis.  Sta- 
tistics demonstrating  a  numerical  under- 
representation  of  minority  groups  and 
women  can  play  a  major  role  in  demon- 
strating a  disparate  impact  form  of  dis- 
crimination and,  in  some  circumstances, 


may  serve  as  evidence  of  discriminatory 
intent.78  Moreover,  in  pursuing  the 
remedial  goal  of  eliminating  discrimina- 
tion and  its  effects,  affirmative  action 
efforts  have  traditionally  made  extensive 
use  of  numerical  objectives  or  goals. 
Such  use  is  based  on  the  assumption  that 
disproportionate  underrepresentation  of 
minorities  and  women  is  an  effect  of  past 
and  continuing  discrimination  for  which 
a  remedy  is  needed.79 

To  date,  statistics  have  been  used 
infrequently  with  respect  to  handicap 
discrimination.80  Few  court  decisions 
have  viewed  statistical  evidence  as  prov- 
ing disparate  impact  or  suggesting  inten- 
tional discrimination.81  It  would  seem 
the  absence  of  handicapped  participants 
in  a  program  or  activity  with  many 
nonhandicapped  participants  might  be 
evidence  of  discrimination.  The  total 
absence  of  people  commonly  considered 
handicapped  from  a  large  employer's 
work  force,  for  example,  is  statistically  so 
unlikely  as  to  suggest  discrimination. 
Given  the  connection  between  handicaps 
and  functional  limitations,  however,  dis- 
proportionate   underrepresentation    of 


78  Affirmative  Action  Statement,  pp.  16-18. 

79  Ibid.,  pp.  18-23,  33-34. 

80  See,  e.g.,  Gittler,  pp.  971-73;  Lang,  pp.  1007-08. 

81  Some  decisions  have  made  use  of  numerical 
information  in  particular  contexts.  In  Board  of 
Educ.  v.  Rowley,  102  S.Ct.  3034  (1982),  for  exam- 
ple, the  Supreme  Court  discussed  various  esti- 
mates of  handicapped  children  receiving  and  not 
receiving  special  education  services.  Id.  at  3045- 
46.  In  Rhode  Island  Handicapped  Action  Comm. 
v.  Rhode  Island  Pub.  Transit  Auth.,  549  F.  Supp. 
592,  613-14  (D.R.I.  1982),  the  court  weighed  the 
number  of  potential  additional  wheelchair  users 
who  would  ride  Rhode  Island  public  transit  buses 
if  they  were  made  accessible  against  the  costs  of 
making  the  buses  accessible.  In  New  Mexico 
Ass'n  for  Retarded  Citizens  v.  State  of  N.M.,  678 
F.2d  847,  854  (10th  Cir.  1982),  the  court  indicated 
that  the  greater  the  number  of  children  needing 


people  with  a  particular  type  of  handicap 
does  not  necessarily  indicate  unlawful 
discrimination.  A  Federal  court  of  ap- 
peals has  considered  the  problem  and 
ruled  that  statistical  analysis  like  that 
employed  in  the  racial  context82  should 
apply  to  cases  of  handicap  discrimination 
with  only  "minor  differences": 


One  difference.  .  .is  that,  when  as- 
sessing the  disparate  impact  of  a 
facially-neutral  criterion,  courts 
must  be  careful  not  to  group  all 
handicapped  persons  into  one  class, 
or  even  into  broad  subclasses.  This  is 
because  "the  fact  that  an  employer 
employs  fifteen  epileptics  is  not  nec- 
essarily probative  of  whether  he  or 
she  has  discriminated  against  a 
blind  person."83 

The  link  between  handicaps  and  func- 
tional ability  and  the  existence  of  dispa- 
rate subclasses  make  statistical  evidence 
more  complicated  to  apply  in  handicap 
discrimination  cases  than  in  traditional 
civil  rights  contexts.84 

a  special  education  service,  the  more  likely  that 
the  failure  to  provide  the  service  constitutes 
discrimination.  In  Gurmankin  v.  Costanzo,  626 
F.2d  1132,  1135  (3d  Cir.  1980),  the  court  discussed 
the  "numerosity"  requirement  under  the  Federal 
Rules  of  Civil  Procedure  of  a  proposed  class  of 
blind  applicants  who  had  been  excluded  from 
teaching  jobs  in  the  Philadelphia  public  schools. 
In  none  of  these  instances,  however,  were  statis- 
tics used  to  indicate  disproportionate  representa- 
tion in  order  to  establish  the  existence  of  discrim- 
ination. 

82  See  Griggs  v.  Duke  Power  Co.,  401  U.S.  424 
(1971). 

83  Prewitt  v.  United  States  Postal  Service,  662 
F.2d  292,  307  (5th  Cir.  1981),  quoting  Gittler,  p. 
972. 

84  In  Jennings  v.  Alexander,  518  F.  Supp.  877 


157 


Another  problem  with  using  statistical 
information  to  demonstrate  handicap 
discrimination  is  the  difficulty  of  obtain- 
ing useful  statistics.  Chapter  1  discussed 
the  problem  of  securing  accurate  data  on 
the  prevalence  of  handicaps  in  the  gener- 
al population.  In  addition,  it  is  some- 
times difficult  to  obtain  meaningful  sta- 
tistics about  participation  in  programs  or 
activities.  And  the  number  of  handi- 
capped applicants  often  provides  too 
small  a  base  for  a  traditional  statistical 
study  of  the  potential  participant  pool.85 

Because  of  such  complexities  and  diffi- 
culties, and  in  contrast  to  the  numerical 
goals  and  timetables  that  have  played  a 
major  role  in  affirmative  action  for  wom- 
en and  minorities,  affirmative  action 
plans  to  combat  handicap  discrimination 
have  seldom  featured  numerical  infor- 
mation. As  more  accurate  data  become 
available,  this  situation  is  likely  to 
change.  The  U.S.  Equal  Employment 
Opportunity   Commission   has   required 


(M.D.  Tenn.  1981),  the  court  considered  an  al- 
leged disparate  impact  upon  handicapped  per- 
sons of  a  reduction  of  medicaid  coverage  for 
inpatient  hospital  care  from  a  maximum  of  20 
days  per  year  to  a  proposed  14  days  per  year. 
Statistical  evidence  in  the  case  indicated  that 
handicapped  medicaid  recipients  more  often 
needed  more  than  14  days  of  inpatient  care  and 
thus  would  be  disproportionately  affected  by  the 
reduction.  The  court  held  that  in  the  circum- 
stances of  the  case,  such  statistical  disparity  did 
not  amount  to  illegal  discrimination.  It  ruled 
that  as  long  as  the  program  was  "equally  accessi- 
ble" to  handicapped  and  nonhandicapped  per- 


the  setting  of  numerical  goals  and  time- 
tables with  regard  to  the  hiring  of  handi- 
capped employees  by  Federal  agencies.86 
Agencies  with  more  than  500  employees 
must  set  specific  goals  to  hire  people 
with  certain  "severe"  conditions,  which 
have  been  denominated  "targeted  disa- 
bilities."87 

These  and  other  matters  concerning 
the  application  of  established  civil  rights 
principles  to  handicap  discrimination 
have  yet  to  be  completely  resolved.  Ques- 
tions remain  about  procedures  for  vali- 
dating selection  criteria  that  tend  to 
screen  out  handicapped  applicants88  and 
about  the  effect  that  concepts  like  rea- 
sonable accommodation  and  undue  hard- 
ship have  on  evidentiary  burdens  and 
substantive  analyses.89  Answering  such 
questions  will  require  a  reasoned  and 
consistent  approach  that  derives  from 
the  nature  and  extent  of  handicap  dis- 
crimination and  the  societal  objective  of 
full  participation. 

sons,  it  need  not  be  "equally  productive"  or 
produce  statistically  "identical  results."  Id.  at 
883. 

85  E.g.,  Lang,  p.  1007;  Gittler,  pp.  971-72. 

86  U.S.,  Equal  Employment  Opportunity  Com- 
mission, Management  Directive  711,  Nov.  2,  1982, 
p.  3. 

87  The  "targeted  disabilities"  are  deafness, 
blindness,  missing  extremities,  partial  and  com- 
plete paralysis,  convulsive  disorders,  mental  re- 
tardation, mental  illness,  and  distortion  of  the 
limbs  or  spine.  Ibid.,  p.  3. 

88  See,  e.g,  Lang,  pp.  1008-09. 

89  See,  e.g,  Gittler,  pp.  973-75;  Lang,  pp.  1007-08. 


158 


Conclusions 


During  the  past  15  years,  a  substantial 
body  of  law  has  developed  to  address  the 
problem  of  discrimination  against  handi- 
capped persons.  Increased  public  aware- 
ness of  handicap  discrimination  has  led 
to  advances  for  handicapped  people  and 
changes  in  society.  Nonetheless,  many 
legal  issues  remain  unresolved  and  rela- 
tively unexamined.  Accommodating  the 
Spectrum  of  Individual  Abilities  ex- 
plores what  we  have  learned  about  hand- 
icap discrimination  and  the  laws  prohi- 
biting it,  focusing  on  reasonable  accom- 
modation as  a  key  legal  requirement. 
The  descriptive  material  in  part  I  and 
the  analytic  framework  and  legal  stan- 
dards presented  in  part  II  provide  overall 
guidance  to  those  charged  with  inter- 
preting and  applying  handicap  nondis- 
crimination requirements. 

Overall  Conclusions 

1.  Historically,  society  has  tended  to 
isolate  and  segregate  handicapped  peo- 
ple. Despite  some  improvements,  partic- 
ularly in  the  last  two  decades,  discrimi- 
nation against  handicapped  persons  con- 
tinues  to  be   a  serious   and   pervasive 


social  problem.  It  persists  in  such  critical 
areas  as  education,  employment,  institu- 
tionalization, medical  treatment,  invol- 
untary sterilization,  architectural  barri- 
ers, and  transportation. 

2.  Because  of  limited  contact  many 
nonhandicapped  people  know  little  about 
the  abilities  and  disabilities  of  handi- 
capped people.  Although  open  hostility  is 
now  rare,  prejudice  against  handicapped 
people,  manifested  as  discomfort,  patron- 
ization,  pity,  stereotyping,  and  somati- 
zation, remains  common.  Such  prejudice 
involves  an  overreaction  to  differing 
physical  and  mental  abilities  that  im- 
putes more  difference  to  handicapped 
persons  than  actually  exists. 

3.  Extrapolations  from  existing  data 
suggest  that  handicapped  people  are  be- 
tween 9  and  14  percent  of  the  population. 
Problems  with  existing  statistical  infor- 
mation include  divergent  sources  of  data, 
conflicting  definitions  of  terms,  and  in- 
consistent survey  methodologies,  which 
together  render  aggregated  data  impre- 
cise. More  reliable,  standardized,  and 
comprehensive  data  are  needed. 


159 


4.  Our  Nation's  declared  goal  for  its 
handicapped  population  is  full  participa- 
tion in  society.  Attaining  this  goal  re- 
quires efforts  by  the  public  and  private 
sectors  to  change  conduct  and  attitudes 
and  provide  needed  services.  Substantial 
evidence  suggests,  and  numerous  author- 
ities have  concluded,  that  the  benefits  to 
society  outweigh  the  costs  of  achieving 
full  participation.  Promoting  increased 
social  and  economic  participation  by 
handicapped  persons  appears  to  be  a 
sound  long-term  investment. 

5.  Along  with  constitutional  guaran- 
tees of  equal  protection  and  due  process, 
numerous  State  laws  and  almost  30 
Federal  laws  prohibit  discrimination 
against  handicapped  people.  A  major 
impetus  of  the  Federal  statutes  is  a 
broad  prohibition  of  discrimination  on 
the  basis  of  handicap  by  Federal  Govern- 
ment agencies,  Federal  contractors,  and 
recipients  of  Federal  financial  assis- 
tance. Particularly  stringent  require- 
ments and  specific  rights  have  been 
established  with  respect  to  elementary 
and  secondary  education  for  handi- 
capped children.  These  include  a  guaran- 
tee of  free  appropriate  public  education 
for  each  handicapped  child  and  proce- 
dures that  assure  parental  involvement 
and  fair  decisionmaking  about  educa- 
tional placements.  A  major  component  of 
many  Federal  laws  and  regulations  is  a 
requirement  of  individualized  program- 
ming to  assess  the  particular  abilities 
and  meet  the  particular  needs  of  each 
handicapped  individual. 

6.  In  general,  handicap  antidiscrimi- 
nation provisions  prohibit  conduct,  poli- 
cies, and  practices  that  result  in  any  of 
several  types  of  discrimination  against 
handicapped  people:   intentional  exclu- 


sion; unintentional  exclusion;  segrega- 
tion; unequal  or  inferior  services,  bene- 
fits, or  activities;  less  effective  services, 
benefits,  or  activities;  and  use  of  screen- 
ing criteria  that  have  a  disparate  impact 
and  do  not  correlate  with  actual  ability. 
7.  The  removal  of  architectural, 
transportation,  and  communication  bar- 
riers is  required  to  varying  degrees  by  a 
number  of  handicap  antidiscrimination 
laws.  All  new  Federal  and  federally 
assisted  buildings  must  be  accessible. 
Further,  all  Federal  and  federally  assis- 
ted programs  and  activities  must  be 
accessible,  which  sometimes  requires  the 
alteration  of  existing  buildings.  With 
some  exceptions,  cost  is  not  a  defense  to 
providing  such  accessibility.  The  legal 
standards  under  three  separate  Federal 
statutes  mandating  accessible  mass  tran- 
sit have  varied  and  continue  to  be  uncer- 
tain. In  some  circumstances,  communica- 
tion barriers  to  handicapped  people  may 
constitute  illegal  discrimination  that 
must  be  eliminated. 


Differing  Abilities  and  Social 
Context 

Many  issues  in  handicap  antidiscrimi- 
nation law  remain  disputed  or  relatively 
unexamined.  Several  orienting  princi- 
ples derived  from  the  underlying  causes 
and  nature  of  handicap  discrimination 
can  assist  the  development  of  coherent 
and  consistent  legal  standards. 

1.  The  source  of  much  discrimination 
against  handicapped  people  is  a  common 
view  of  handicaps  as  physical  or  mental 
disorders  that  inevitably  limit  ability, 
performance,  and  success.  Under  this 
view,  any  disadvantage  or  inequality 
handicapped  persons  suffer  is  thought  to 
occur  primarily  because  they  are  "dis- 


160 


abled"  and  cannot  take  advantage  of 
opportunities.  A  contrary  view  focuses 
on  societal  actions  and  prejudice  as  the 
causes  of  restricted  opportunities  for 
people  with  mental  and  physical  limita- 
tions. Proponents  of  this  view  hold  that 
there  are  no  handicapped  people — that  it 
is  society  that  "handicaps"  people.  This 
monograph  adopts  a  third  view,  which  is 
based  on  the  nature  of  physical  and 
mental  differences,  social  conditions,  and 
their  interplay. 

2.  Human  abilities  occur  as  spec- 
trums;  for  each  separate  mental  or  phys- 
ical function,  there  is  a  range  of  ability  to 
perform,  with  some  individuals  perform- 
ing superlatively,  some  minimally  or  not 
at  all,  and  some  at  every  level  in  be- 
tween. Variations  also  occur  in  the  de- 
vices and  techniques  for  minimizing 
functional  limitations  and  in  the  life 
experiences,  motivation,  and  individual 
preferences  for  dealing  with  functional 
limitations. 

3.  In  addition,  the  significance  of  par- 
ticular abilities  varies  from  context  to 
context.  Virtually  everyone  is  "handi- 
capped" for  one  purpose  or  another. 
More  than  is  commonly  supposed,  society 
is  inherently  adaptable  to  differences  in 
mental  and  physical  abilities.  Programs 
and  activities  can  produce  their  intended 
benefits  in  a  variety  of  reasonable  and 
practical  ways.  There  are  many  ways  to 
structure  tasks  and  activities  to  change 
the  relative  value  of  particular  abilities. 
Alternatives  exist  for,  among  other 
things,  grouping,  locating,  and  sched- 
uling tasks  and  activities  and  choosing 
devices  and  techniques  for  achieving 
them. 

4.  To  a  great  extent,  society  deter- 
mines the  consequences  of  physical  and 


mental  differences  by  the  way  it  defines 
and  carries  out  its  tasks  and  activities. 
Society's  operations — from  its  sidewalks 
to  its  schoolrooms  and  its  jobs — ordinari- 
ly are  designed  for  people  whose  abilities 
fall  in  the  "normal"  range.  As  a  result, 
they  exclude  or  seriously  disadvantage 
people  whose  abilities  do  not  mesh  with 
the  particular  methods  by  which  society 
customarily  accomplishes  tasks  and  ob- 
jectives. 

5.  Our  society  creates  handicap  dis- 
crimination when  it  distorts  the  abilities 
of  handicapped  people  by  drawing  lines 
across  the  spectrum  of  physical  and 
mental  abilities  and  labels  those  on  one 
side  "handicapped"  and  those  on  the 
other  "normal."  The  handicapped-nor- 
mal dichotomy  and  the  traditional  disa- 
bility categories,  such  as  blind,  deaf, 
mentally  ill,  mentally  retarded,  or- 
thopedically  handicapped,  and  learning 
disabled,  are  oversimplifications  of  the 
spectrum  of  individual  abilities.  They 
involve  both  arbitrary  placement  of  lines 
and  the  lumping  together  of  dissimilar 
conditions  under  a  single  label. 

6.  Interactions  between  mental  and 
physical  differences  and  social  and  eco- 
nomic contexts  are  highly  diverse  and 
individualized.  Not  all  physical  or  men- 
tal differences  cause  functional  impair- 
ments; not  all  functional  impairments 
restrict  activities;  and  not  all  activity 
restrictions  cause  vocational  or  avoca- 
tional  limitations.  Therefore,  actions 
based  on  the  assumption  that  people 
with  a  particular  type  of  handicap  are 
incapable  of  participating  in  a  given 
opportunity  frequently  are  discriminato- 
ry. 


161 


Reasonable  Accommodation 

1.  The  courts  have  interpreted  handi- 
capped nondiscrimination  laws  to  re- 
quire "meaningful  equal  opportunity,"  a 
phrase  that  takes  into  account  both  the 
functional  limitations  the  term  "handi- 
cap" implies  and  the  fact  that  alterna- 
tive methods  of  performing  tasks  or 
activities  often  permit  people  of  varying 
abilities  to  participate  without  jeopardiz- 
ing outcomes.  Simply  treating  handi- 
capped people  "like  everyone  else"  is 
frequently  unlawful.  To  accomplish 
meaningful  equal  opportunity  for  handi- 
capped persons,  regulators  and  the 
courts  have  required  "reasonable  accom- 
modation"— that  is,  the  provision  or 
modification  of  devices,  services,  facili- 
ties, practices,  or  procedures  in  order  to 
match  particular  persons  with  particular 
programs  or  activities. 

2.  The  legal  standards  as  to  what 
contexts,  for  whom,  in  what  ways,  and  to 
what  extent  reasonable  accommodations 
must  be  made  are  not  fully  resolved. 
Moreover,  the  diversity  of  human  abili- 
ties and  of  institutions,  programs,  and 
activities  makes  it  impossible  to  state  a 
simple  legal  formula  that  produces  defin- 
itive answers  for  all  situations.  Reason- 
able accommodation  is  more  usefully 
viewed  as  a  process  of  considering  all 
factors  relevant  to  the  particular  con- 
text. In  applying  this  process,  several  key 
legal  principles  are  emerging  that  pro- 
vide guidance. 

Individualization 

Reasonable  accommodation  empha- 
sizes individualization,  a  process  of  con- 
sidering the  physical  and  mental  abili- 
ties of  a  handicapped  individual  and 
whether  there  are  equally  effective  alter- 
native  methods   of  achieving  essential 


objectives  that  would  permit  his  or  her 
participation.  Elementary  and  secondary 
education,  higher  education,  and  em- 
ployment are  three  major  areas  in  which 
handicap  discrimination  laws  require 
that  opportunities  be  tailored  to  individ- 
ual needs. 

"Qualified"  Individual 

Title  V  of  the  Rehabilitation  Act  limits 
nondiscrimination  protection  and  the 
right  to  reasonable  accommodation  to 
handicapped  persons  who  are  "otherwise 
qualified."  That  phrase  defines  the  class 
of  handicapped  people  who  can  perform 
the  essential  functions,  who  meet  essen- 
tial eligibility  criteria,  or  who  are  other- 
wise capable  of  benefiting  from  the  pro- 
gram or  activity.  A  handicapped  individ- 
ual may  not  be  found  unqualified  with- 
out considering  whether  a  reasonable 
accommodation  would  render  the  indi- 
vidual qualified. 

Stated  Qualifications  and  Selection 
Criteria 

The  law  also  uses  the  word  "qualified" 
in  the  sense  of  meeting  stated  qualifica- 
tions. The  removal  of  discriminatory 
qualifications  is  a  legal  prerequisite  to 
rendering  individualized  accommoda- 
tion. Courts  have  scrutinized  and  fre- 
quently struck  down  exclusionary  classi- 
fications based  on  traditional  disability 
categories.  Similarly,  selection  criteria 
that  inaccurately  or  unnecessarily  mea- 
sure physical  or  mental  abilities  may 
also  illegally  exclude  handicapped  peo- 
ple. Federal  regulations  require  employ- 
ment selection  criteria  that  disadvantage 
handicapped  individuals  to  be  job  related 
and,  under  some  standards,  necessary  or 
essential.  To  withstand  scrutiny,  non- 
employment-related    selection    criteria 


162 


must  also  generally  be  "essential."  Ex- 
ceptions to  prohibitions  of  disability- 
based  blanket  classifications  and  non- 
task-related  criteria  include  remedial 
programs  for  handicapped  people  and 
certain  safety-related  criteria. 

Equivalence 

As  a  guide  to  the  appropriateness  of  an 
accommodation,  the  law  has  developed 
the  concept  of  equivalence.  This  flexible 
standard  ranges  from  requiring  full  and 
identical  participation  to  requiring  only 
roughly  comparable  benefit.  The  concept 
of  equivalent,  as  opposed  to  identical, 
opportunities  means  that,  wherever  pos- 
sible, the  individual  needs  of  handi- 
capped people  should  be  met  to  the  same 
extent  that  the  corresponding  needs  of 
nonhandicapped  persons  are  met.  To 
accomplish  this  goal,  adjustments  to  reg- 
ular programs  or  the  provision  of  differ- 
ent programs  may  sometimes  be  neces- 
sary. 

Limits  on  the  Duty  to  Accommodate 

Limits  on  the  duty  to  accommodate 
flow  from  the  central  concept  that  essen- 
tial program  components  are  to  be  pre- 
served. As  with  the  principle  of  individu- 
alization, the  distinction  between  essen- 
tial, as  opposed  to  incidental,  program 
elements  applies,  and  legal  standards 
differ  depending  on  the  societal  area 
involved.  Generally,  substantial  modifi- 
cations that  impinge  on  essential  pro- 
gram components  or  purposes  or  that 
impose  undue  financial  and  administra- 
tive burdens  are  not  legally  required.  In 
areas  like  employment,  excessive  costs 
may  limit  the  duty  to  render  reasonable 
accommodation.  In  other  circumstances, 
as  with  a  handicapped  child's  right  to  a 
free  appropriate  public  education,  cost  is 


only  a  consideration  in  choosing  among 
alternative  ways  of  satisfying  the  obliga- 
tion; it  is  not  a  defense  to  the  duty  itself. 

Applying  Established  Civil 
Rights  Law  to  Handicap 
Discrimination 

1.  The  legal  theories,  principles,  and 
precedents  of  traditional  civil  rights  law 
should  be  applied  to  handicap  discrimi- 
nation cases  only  when,  and  to  the 
degree  that,  they  are  equally  relevant. 

2.  The  classification  "handicapped" 
has  unique  features:  it  is  usually  predi- 
cated upon  actual  functional  differences 
that  may  impede  performance;  it  is  in- 
definite, having  a  multiplicity  of  defini- 
tions and  an  extremely  heterogeneous 
membership;  it  is  nonexclusive — every- 
one may  become  a  member;  and  its 
members  are  subject  to  a  medical  model 
and  are  often  perceived  as  "sick."  More- 
over, handicaps,  which  have  many 
causes,  may  be  ameliorated  by  medical, 
mechanical,  and  technological  advances. 
These  characteristics  distinguish  handi- 
cap discrimination  from  other  forms  of 
discrimination,  and  the  distinctions  may 
have  legal  consequences. 

3.  The  two  legal  standards  for  prov- 
ing discrimination  in  traditional  civil 
rights  law — one  concerned  with  the  in- 
tent behind  actions  and  the  other  with 
their  effects — should  not  be  mechanical- 
ly applied  to  handicap  discrimination 
cases,  but  must  be  adapted  to  the  nature 
of  handicap  discrimination. 

4.  Concepts  of  neutrality  toward  the 
class  characteristic,  such  as  "color- 
blindness" toward  race,  are  only  partial- 
ly applicable  to  handicap  discrimination 
issues.  Because  of  the  relationship  be- 
tween handicap  classifications  and  real 


163 


functional  limitations,  such  neutrality  or 
indifference  is  not  the  goal  of  handicap 
discrimination  prohibitions.  Individual 
functional  limitations  must  be  taken  into 
account  to  avoid  discriminating  on  the 
basis  of  handicap.  A  major  parallel  to  the 
concept  of  colorblindness,  however,  is  a 
requirement  to  avoid  classifications 
based  on  traditional  handicap  status 
categories. 

5.  Handicap  nondiscrimination  pro- 
visions and  their  reasonable  accommoda- 
tion component  prohibit  conduct,  poli- 
cies, and  practices  that  currently  ex- 
clude, segregate,  or  impede  handicapped 
people.  In  the  context  of  handicap  dis- 
crimination, affirmative  action  refers  to 
some  effort  beyond  nondiscrimination 
and  reasonable  accommodation  to  re- 
move the  present  effects  of  past  discrimi- 
nation by  promoting  increased  participa- 
tion of  handicapped  people.  The  premise 
underlying  handicap  affirmative  action 


requirements  is  that  handicap  discrimi- 
nation has  engendered  such  a  serious 
underrepresentation  of  handicapped  per- 
sons, either  in  the  particular  agency, 
program,  or  activity  involved,  or  on  a 
broader  societal  basis,  that  efforts  be- 
yond nondiscrimination  requirements 
are  required  to  achieve  an  equitable 
level  of  participation. 

6.  Because  of  the  limitations  of  avail- 
able statistical  information,  it  has  not 
played  as  great  a  role  in  handicap  dis- 
crimination law  as  it  has  in  other  areas. 
The  use  of  data  may  increase,  however, 
especially  in  targeting  persons  with  par- 
ticular severe  disabilities  for  affirmative 
action  efforts. 

7.  The  key  to  applying  established 
civil  rights  law  is  whether  it  would 
further  the  goal  of  providing  practical 
and  efficient  ways  of  eliminating  dis- 
crimination against  handicapped  people 
and  promoting  their  full  participation. 


164 


APPENDIX  A 

This  appendix  identifies  some  major  social  and  legal  mechanisms,  practices,  and 
settings  in  which  handicap  discrimination  arises.  The  items  listed  are  issue  areas  in 
which  problems  of  discrimination  occur,  however,  no  implication  is  intended  that  the 
listed  practices  necessarily  are  discriminatory.  For  example,  the  inclusion  of  "legal 
restrictions  on  contractual  capacity"  in  the  outline  does  not  indicate  that  all  such 
legal  restrictions  are  discriminatory,  but  rather  that  some  particular  restrictions  and 
their  implementation  have  caused  discrimination  against  handicapped  persons.  This 
list  is  exemplary  only  and  should  not  be  considered  exhaustive. 
Discrimination  Against  Handicapped  Persons 
Outline  of  Issue  Areas 


I.     EDUCATION 

Major  Types  or  Areas  of  Discrimination 

1.  Exclusion 

2.  Inappropriate  programs  and  place- 
ments 

3.  Nonidentiflcation 

4.  Misclassification  of  racial  and  ethnic 
minorities 

5.  Absence  of  procedural  protections 

6.  Noneducation    of  institution    resi- 
dents 

7.  Segregation   (nonmainstreaming)  of 
handicapped  pupils 

8.  Dealing  with  handicaps  as  disciplin- 
ary problems 

9.  Lack  of  parental  and  student  knowl- 
edge of  educational  rights 

II.     EMPLOYMENT 

Major  Types  or  Areas  of  Discrimination 

1.  Preemployment  inquiries 

2.  Hiring  criteria 

3.  Lack  of  outreach  (affirmative  action) 

4.  Promotions 


5.  Employment  benefits  and  insurance 

6.  Termination 

7.  Working  conditions 

8.  Employer  and  fellow  employee  atti- 
tudes 

9.  Institutional  peonage  (nontherapeu- 
tic  work  programs) 

10.  Below-standard  wages 

11.  Sheltered  workshops 

12.  Vocational  rehabilitation  programs 

13.  Worker's  compensation 

III.     ACCESSIBILITY    OF    BUILD- 
INGS AND  THOROUGHFARES 
Major  Types  or  Areas  of  Discrimination 
1 .     Types  of  barriers 

a.  Entrances 

b.  Stairs 

c.  Curbs 

d.  Elevators 

e.  Toilet  facilities 

f.  Signals  and  warning  devices 

g.  Telephones 

h.     Water  fountains 


165 


i.     Carpeting 
j.     Doorways  and  doors 
k.     Steep,  long,  or  dangerous  ramps 
1.    Absence  of  handrails 
m.     Parking  areas 
2.     Where  barriers  occur 

a.  Governmental  buildings 

b.  Schools 

c.  Stores,    shops,    shopping   centers, 
and  other  commercial  establishments 

d.  Hotels,    recreational    facilities, 
parks 

e.  Public  housing 

f.  Private  homes 

g.  Sidewalks  and  streets 
h.     Public  monuments 

IV.  TRANSPORTATION 

Major  Types  or  Areas  of  Discrimination 
(Both  Physical  Barriers  and  Rules,  Poli- 
cies, and  Practices) 

1.  Public  transit  systems 

a.  Inaccessible  buses 

b.  Inaccessible   trains,   trolleys,   and 
subway  vehicles 

c.  Inaccessible  ferries 

d.  Inaccessible  terminals 

2.  Bus  companies 

3.  Trains 

4.  Airlines 

5.  Taxis  and  limousine  service 

6.  Rental  cars 

7.  Ships  and  boats 

8.  Private  vehicles 

a.  Adaptations 

b.  Licensing  requirements 

V.  COMPETENCY  AND  GUARDIAN- 
SHIP 

Major  Types  or  Areas  of  Discrimination 

1.  Overly  intrusive  guardianship  proce- 
dures (all-or-nothing  approach) 

2.  Absence  of  adequate  procedural  pro- 
tections 


3.  Improper  persons  or  agencies  as 
guardians;  conflicts  of  interest 

4.  Problems  with  institutional  and  pub- 
lic guardianship 

VI.  INSTITUTIONS  AND  RESIDEN- 
TIAL CONFINEMENT 

Major  Types  or  Areas  of  Discrimination 

1.  Large-scale  institutions 

2.  Commitment  procedures 

a.  Standards  for  involuntary  commit- 
ment 

b.  Procedural  prerequisites 

3.  Conditions  in  institutions 

4.  Lack  of  treatment  and  habilitation 
programs 

5.  Abuse  and  neglect  of  residents 

6.  Denormalization 

7.  Absence  of  community  alternatives 

8.  Continuation  of  construction  and  ex- 
pansion of  large  institutions 

VII.  HOUSING 

Major  Types  or  Areas  of  Discrimination 

1.  Denial  of  access  to  public  housing 

2.  Zoning  obstacles 

3.  Restrictive  covenants 

4.  Lack  of  accessible  housing 

5.  Overly  protective  fire  codes  and  oth- 
er regulations 

6.  Lack  of  group  homes,  cluster  homes, 
cooperative  living  arrangements,  and 
other  residential  alternatives  for  handi- 
capped people 

VIII.  MEDICAL  SERVICES 
Major  Types  or  Areas  of  Discrimination 

1.  Denial  of  lifesaving  medical  treat- 
ment to  handicapped  infants 

2.  Problems  with  informed  consent  for 
medical  treatment  for  handicapped  per- 
sons 

3.  Electroconvulsive  therapy 

4.  Psychosurgery 

5.  Psychotropic  drugs 

6.  Access  to  medical  records 


166 


7.  Consent  to  medical  treatment  of  in- 
stitutionalized persons 

8.  Organ  donations  from  handicapped 
children 

9.  Discriminatory  policies  of  hospitals 
and  doctors 

10.  Medical  experimentation 

IX.  SEXUAL,  MARITAL,  AND  PA- 
RENTAL RIGHTS 

Major  Types  or  Areas  of  Discrimination 

1.  Involuntary  sterilization 

2.  Sexual  segregation  of  institution  res- 
idents 

3.  Restriction  of  sexual  practices  of  per- 
sons in  residential  programs 

4.  Denial  of  access  to  contraception 

5.  Restriction  of  access  to  information 
about  sexuality,  reproduction,  and  con- 
traception 

6.  Legal  restrictions  on  marriages  by 
handicapped  people 

7.  Refusal  to  permit  cohabitation  of 
married  couples  in  residential  institu- 
tions 

8.  Removal  of  children  and  termination 
of  parental  rights  of  handicapped  par- 
ents 

9.  Awarding  custody  of  children  to  non- 
handicapped  party  in  divorce  proceed- 
ings 

10.  Denial  of  adoption  rights  to  handi- 
capped individuals 

X.  CONTRACTS,  OWNERSHIP,  AND 
TRANSFER  OF  PROPERTY 

Major  Types  or  Areas  of  Discrimination 

1.  Legal  restrictions  on  contractual  ca- 
pacity 

2.  Legal  restrictions  on  testamentary 
capacity 

3.  Practical  difficulties  of  some  physi- 
cally handicapped  persons  in  making  a 
will  or  entering  into  a  contract 

4.  Representative  payees 


5.  Denial  of  personal  possessions  to  insti- 
tution residents 

XI.  VOTING    AND    HOLDING    PUB- 
LIC OFFICE 

Major  Types  or  Areas  of  Discrimination 

1.  State  laws  restricting  voting  rights  of 
mentally  handicapped  persons 

2.  Denial  of  opportunity  for  institution 
residents  to  vote 

3.  Architectural    barriers    at    polling 
places 

4.  Absence  of  assistance  in  ballot  mark- 
ing 

5.  Inequity  of  absentee  ballots 

6.  Restrictions  on  rights  of  handicapped 
persons  to  hold  public  office 

XII.  LICENSES 

Major  Types  or  Areas  of  Discrimination 

1.  Restrictions  on  driver's  licenses 

a.  Vision 

b.  Hearing 

c.  Epilepsy 

d.  Orthopedic  handicaps 

e.  Other  conditions 

2.  Restrictions  on  hunting  and  fishing 
licenses 

3.  Other  types  of  licenses 

XIII.  INSURANCE 

Major  types  or  areas  of  discrimination 

1.  Restrictions  on  availability  to  handi- 
capped persons  of: 

a.  Life  insurance 

b.  Health  and  accident  insurance 

c.  Automobile  insurance 

d.  Disability  insurance 

e.  Worker's  compensation 

f.  Other 

2.  Availability  of,  and  need  for,  actuari- 
al data 

XIV.  IMMIGRATION 

Major  Types  or  Areas  of  Discrimination 
1.     Exclusion    of  handicapped   aliens 
(even  children  of  qualified  immigrants) 


167 


2.  Congressional  standards  for  admis- 
sion to  U.S. 

XV.  PERSONAL  PRIVACY 

Major  Types  or  Areas  of  Discrimination 

1.  Nude  or  other  embarassing  photos  of 
institution  residents 

2.  Publication  of  information,  including 
identity  of  handicapped  persons,  without 
permission 

XVI.  RECREATIONAL  AND  ATH- 
LETIC PROGRAMS 

Major  Types  or  Areas  of  Discrimination 

1.  Denial  of  access  to  varsity  sports 
teams 

2.  Denial  of  access  to  intramural  sports 
programs 

3.  Denial  of  access  to  professional  and 
semipro  teams  (e.g.,  Neeld  v.  National 
Hockey  League) 

4.  Inaccessible  recreation  facilities  and 
programs 

5.  Absence  of  athletic  and  recreational 
opportunities  for  handicapped  persons 
comparable  to  those  available  to  nonhan- 
dicapped  individuals 

XVII.  CRIMINAL  JUSTICE  SYSTEM 
Major  Types  or  Areas  of  Discrimination 

1.  Disproportionate  number  of  mental- 
ly retarded  people  in  prisons  and  juve- 
nile facilities 

2.  Improper  handling  and  communica- 
tion with  handicapped  persons  by  law 
enforcement  personnel 

3.  Insufficient  availability  of  interpret- 
ers 

4.  Application  of  insanity  defense 

5.  Application  of  incompetency  to  stand 
trial 


6.  Inadequate  treatment  and  rehabili- 
tation programs  in  penal  and  juvenile 
facilities 

7.  Inadequate  ability  to  deal  with  physi- 
cally handicapped  accused  persons  and 
convicts  (e.g.,  accessible  jail  cells  and 
toilet  facilities) 

8.  Abuse  of  handicapped  persons  by 
other  inmates 

XVIII.  CONSUMER  PROTECTION 
Major  Types  or  Areas  of  Discrimination 

1.  Defective  wheelchairs,  prosthetic  de- 
vices, canes,  glasses,  hearing  aids,  etc. 

2.  Fraudulent  schemes  targeted  at 
handicapped  persons 

XIX.  SERVING  ON  JURIES 
Major  Types  or  Areas  of  Discrimination 

1.  Disqualification  of  many  handi- 
capped persons  from  jury  service 

2.  Absence  of  accommodations  to  per- 
mit handicapped  persons  to  serve  as 
jurors 

XX.  ACCESS  TO  MASS  MEDIA 
Major  Types  or  Areas  of  Discrimination 

1.  Insufficient  captioning  of  television 
programs 

2.  Insufficient  availability  of  braille 
and  tape-recorded  versions  of  publica- 
tions 

3.  Insufficient  availability  of  radio  in- 
formation in  visual  form  (news,  sports, 
weather,  upcoming  events,  public  infor- 
mation, etc.) 

XXI.  PARTICIPATION  IN  MILI- 
TARY 

Major  Types  or  Areas  of  Discrimination 
Explicit  ineligibility  of  handicapped  per- 
sons for  induction  into  military  service 


168 


Appendix  B 

Handicap  Civil  Rights  Statutes 


Methodology 

The  following  list  of  U.S.  Code  provi- 
sions was  compiled  mainly  through  use 
of  the  JURIS  system,  a  computerized 
legal  research  system  maintained  by  the 
Department  of  Justice,  as  well  as  with 
reference  to  the  General  Accounting 
Office's  1978  publication,  A  Compilation 
of  Federal  Laws  and  Executive  Orders  for 
Nondiscrimination  and  Equal  Opportu- 
nity Programs. 

This  list  includes  measures  that  pro- 
hibit discrimination  on  the  basis  of  hand- 
icap, ensure  equal  opportunity  without 
regard  to  handicap,  or  require  affirma- 
tive action  for  handicapped  individuals 
in  programs  not  specifically  targeted  for 
the  handicapped.  It  includes  not  only 
general  requirements,  but  also  specific 
ones  that  condition  the  receipt  of  certain 
funds  or  participation  in  certain  pro- 
grams. As  a  result,  some  of  the  statutes 
provide  broad  and  sometimes  overlap- 
ping protections  (e.g.,  29  U.S.C.  §794, 
prohibiting  discrimination  on  the  basis 
of  handicap  in  any  program  or  activity 
receiving  Federal  financial  assistance, 
covers  the  social  services  and  elementary 
and  secondary  education  block  grants 
created  by  the  Omnibus  Budget  Recon- 
ciliation Act  of  1981  as  well  as  block 


grant  programs  created  by  that  law  with 
specific  handicap  antidiscrimination  pro- 
hibitions). The  list  excludes  many  handi- 
cap laws  with  civil  rights  provisions  or 
objectives,  such  as  29  U.S.C.  §791(c) 
(1976),  as  amended  by  Reorg.  Plan  No.  1 
of  1978,  §4,  42  U.S.C.  2000e-4  note  (Supp. 
V  1981),  requiring  the  U.S.  Equal  Em- 
ployment Opportunity  Commission  and 
the  Office  of  Personnel  Management  to 
develop  for  referral  to  State  agencies 
policies  and  procedures  to  facilitate  em- 
ployment of  handicapped  persons.  The 
list  also  excludes  provisions  requiring 
the  setting  of  standards  to  avoid  handi- 
cap discrimination,  such  as  42  U.S.C. 
§4152  (1976  &  Supp.  V  1981),  requiring 
the  setting  of  Federal  standards  with 
regard  to  architectural  barriers.  Also 
excluded  are  service  programs  aimed 
specifically  at  handicapped  persons,  al- 
though some  of  these  programs,  includ- 
ing those  that  provide  education  and 
training,  may  be  essential  for  attaining 
civil  rights  objectives. 

Some  provisions  listed  are  permanent 
(e.g.,  29  U.S.C.  §794,  prohibiting  discrimi- 
nation on  the  basis  of  handicap  in  any 
program  or  activity  receiving  Federal 
financial  assistance).  Others,  such  as 
those  nondiscrimination  sections  listed 


169 


below  under  the  Omnibus  Budget  Recon- 
ciliation Act  of  1981,  remain  in  force  only 
as  long  as  the  specific  programs  continue 
to  exist. 

All  statutes  listed  refer  to  the  classifi- 
cation of  handicap.  The  list  does  not 
include  statutes  dealing  with  specific 
kinds  of  handicaps,  such  as  42  U.S.C. 
§4581  (1976),  prohibiting  discrimination 
against  alcohol  abusers  and  alcoholics  in 
admission  or  treatment  by  hospitals  re- 
ceiving Federal  funds;  20  U.S.C.  §1684 
(1976),  prohibiting  discrimination 
against  blind  people  in  federally  funded 
education  programs  or  activities;  30 
U.S.C.  §938  (1976  &  Supp.  V  1981),  prohi- 
biting discrimination  by  mine  operators 
against  sufferers  of  pneumoconiosis 
(black  lung  disease);  and  38  U.S.C.  §801 
(1976  &  Supp.  V  1981),  providing  assis- 
tance to  disabled  veterans  in  acquiring 
or  adapting  housing  needed  because  of 
the  disability.  Finally,  all  statutes  are 
listed  without  reference  to  the  availabili- 
ty of  administrative  or  private  enforce- 
ment mechanisms. 

Civil  Service  Reform  Act  of  1978 

5  U.S.C.  §2302(b)(l)(D)  (Supp.  V  1981) 
(prohibits  personnel  actions  that  dis- 
criminate on  the  basis  of  handicapping 
condition,  as  prohibited  under  section 
501  of  the  Rehabilitation  Act  of  1973). 

5  U.S.C.  §7116(b)(4)  (Supp.  V  1981) 
(makes  it  an  unfair  labor  practice  for 
labor  organizations  representing  Fed- 
eral employees  to  discriminate  on  the 
basis  of  handicapping  condition  with 
regard  to  membership  in  the  labor 
organization). 

5  U.S.C.  §7203  (Supp.  V  1981)  (empowers 
the  President  to  prescribe  rules  prohi- 
biting discrimination  because  of  handi- 


capping condition  in  certain  types  of 
Federal  employment). 

Full  Employment  and  Balanced 
Growth  Act 

15  U.S.C.  §3151(a)  (Supp.  IV  1980)  (pro- 
hibits discrimination  on  the  basis  of 
handicap  in  any  program  or  activity 
funded  under  the  Full  Employment 
and  Balanced  Growth  Act). 

Education  of  the  Handicapped  Act 

20  U.S.C.  §1412  (1976)  (requires  State,  in 
order  to  qualify  for  assistance  under 
this  act,  to  have  a  policy  and  a  plan  for 
assuring  all  handicapped  children  the 
right  to  a  free  appropriate  public  edu- 
cation). 

20  U.S.C.  §1413  (1976)  (requires  State 
plans  to  set  policies  and  procedures  to 
assure  that  assistance  provided  under 
this  act  will  be  utilized  in  a  manner 
consistent  with  the  goal  of  providing  a 
free  appropriate  public  education  for 
all  handicapped  children). 

Foreign  Service  Act  of  1980 

22  U.S.C.  §3905(b)(l)  (Supp.  V  1981) 
(prohibits  discrimination  based  on 
handicapping  condition  in  the  Foreign 
Service). 

22  U.S.C.  §4115(b)(4)  (Supp.  V  1981) 
(makes  it  an  unfair  labor  practice  for  a 
labor  organization  to  discriminate  on 
the  basis  of  handicapping  condition 
against  an  employee  of  the  Depart- 
ment of  State). 

Federal-Aid  Highway  Act  of  1973 

23  U.S.C.  §142  note  (1976)  (Bus  and 
Other  Project  Standards)  (requires 
projects  using  Federal  highway  funds 
to  be  planned,  designed,  constructed, 
and  operated  to  permit  use  by  handi- 
capped persons). 


170 


23  U.S.C.  §402(b)(l)(E)  (Supp.  V  1981) 
(prohibits  approval  of  State  highway 
safety  programs  that  do  not  provide 
access  for  handicapped  persons  to 
move  safely  and  conveniently  across 
curbs). 

Rehabilitation  Act  of  1973 

29  U.S.C.  §791(b)  (1976)  (requires  each 
Federal  agency  to  develop  affirmative 
action  program  plans  for  the  hiring, 
placement,  and  advancement  of  handi- 
capped persons). 

29  U.S.C.  §793  (1976  &  Supp.  V  1981) 
(requires  Federal  contracts  and  sub- 
contracts over  $2,500  to  contain  provi- 
sions requiring  contractors  to  take 
affirmative  action  to  employ  and  ad- 
vance handicapped  persons). 

29  U.S.C.  §794  (Supp.  V  1981)  (prohibits 
discrimination  on  the  basis  of  handi- 
cap in  any  program  or  activity  receiv- 
ing Federal  financial  assistance). 

Job  Training  Partnership  Act 

29  U.S.C.A.  §1577(a)(l)  (West  Supp.  1982) 
(provides  that  programs  and  activities 
financially  assisted  under  the  Job 
Training  Partnership  Act  are  consid- 
ered to  receive  Federal  financial  assis- 
tance for  purposes  of  applying  29 
U.S.C.  §794  prohibitions  against  dis- 
crimination on  the  basis  of  handicap). 

29  U.S.C.A.  §1577(a)(2)  (West  Supp.  1982) 
(prohibits  exclusion  from  participa- 
tion, denial  of  benefits,  and  employ- 
ment and  other  discrimination  on  the 
basis  of  handicap  in  programs  receiv- 
ing funds  under  this  act). 

General  Accounting  Office  Personnel 
Act  of  1980 

31  U.S.C.A.  §732(b)(2)  (1983)  (prohibits 
personnel   practices   prohibited   in    5 


U.S.C.  §2302(b),  including  discrimina- 
tion based  on  handicap). 

State  and  Local  Fiscal  Assistance 
Amendments  of  1976 

31  U.S.C.A.  §6716(b)(2)  (1983)  (prohibits 
discrimination  based  on  handicap  in 
any  program  or  activity  funded  under 
the  State  and  Local  Fiscal  Assistance 
Amendments  of  1976). 

Omnibus  Budget  Reconciliation  Act 
of  1981 

42  U.S.C.  §300w-7(a)(l)  (Supp.  V  1981) 
(prohibits  discrimination  based  on 
handicap  in  programs  and  activities 
funded  under  preventive  health  and 
health  services  block  grants). 

42  U.S.C.  §300x-7(a)(l)  (Supp.  V  1981) 
(prohibits  discrimination  based  on 
handicap  in  programs  and  activities 
funded  under  alcohol  and  drug  abuse 
and  mental  health  services  block 
grants). 

42  U.S.C.  §300y-9(a)(l)  (Supp.  V  1981) 
(prohibits  discrimination  based  on 
handicap  in  programs  and  activities 
funded  under  primary  care  block 
grants). 

42  U.S.C.  §708  (Supp.  V  1981)  (prohibits 
discrimination  based  on  handicap  in 
programs  and  activities  funded  under 
maternal  and  child  health  services 
block  grants). 

42  U.S.C.  §5309(a)  (Supp.  V  1981)  (pro- 
hibits discrimination  based  on  handi- 
cap in  programs  and  activities  funded 
under  community  development  pro- 
grams). 

42  U.S.C.  §9849(c)  (Supp.  V  1981)  (pro- 
hibits the  Secretary  from  providing 
funds  under  the  Head  Start  program 
unless  the  grant  or  contract  specifical- 
ly provides  that  no  persons  with  pro- 


171 


gram  responsibilities  will  discriminate 
against  any  individual  on  the  basis  of 
handicapping  condition). 
42  U.S.C.  §9906(a)  (Supp.  V  1981)  (pro- 
hibits discrimination  based  on  handi- 
cap in  any  program  or  activity  funded 
under  the  community  services  block 
grant  program). 

Domestic  Volunteer  Service  Act 
Amendments  of  1978 

42  U.S.C.  §5057(a)  (Supp.  V  1981)  (pro- 
hibits financial  assistance  under  the 
ACTION  program  unless  the  grant, 
contract,  or  agreement  specifically 
provides  that  no  person  with  program 
responsibilities  will  discriminate  on 
the  basis  of  handicap). 

42  U.S.C.  §5057(c)(l)  (Supp.  V  1981) 
(requires  the  application  of  nondiscri- 
mination provisions  in  title  V  of  the 
Rehabilitation  Act  of  1973,  [29  U.S.C. 
§§791-794]  to  applicants  and  volun- 
teers under  the  Domestic  Volunteer 
Service  Act  and  the  Peace  Corps  Act 
[22  U.S.C.  §2501-2519  (1976  &  Supp.  v 


1981),    as    amended   by    22    U.S.C.A. 

§§2501-2517  (West  Supp.  1982)]). 

Developmental  Disabilities  Assistance 
and  Bill  of  Rights  Act 

42  U.S.C.  §6005  (1976)  (requires  recipi- 
ents of  assistance  under  this  legisla- 
tion to  take  affirmative  action  to  em- 
ploy and  advance  handicapped  per- 
sons). 

42  U.S.C.  §6063(b)(5)(C)  (Supp.  V  1981) 
(requires  State  plans  to  assure  protec- 
tions consistent  with  the  rights  enu- 
merated in  §6010,  including  the  provi- 
sion of  treatment,  services,  and  habili- 
tation  in  the  least  restrictive  settings). 

Urban  Mass  Transportation  Act  of 

1970 

49  U.S.C.  §1612(a)  (1976),  as  amended  by 
49  U.S.C.A.  §1612(c)  (West  Supp.  1982) 
(in  conjunction  with  29  U.S.C.  §794  of 
the  Rehabilitation  Act,  requires  States 
receiving  Federal  funds  for  mass  tran- 
sit to  make  special  efforts  in  the  plan- 
ning and  design  of  mass  transit  facili- 
ties and  services  to  accommodate 
handicapped  persons). 


172 


Appendix  C 
Charts 


Table  1 

The  discussion  in  chapter  1  detailed  the  following  estimated  ranges  of  the  proportion  of  handi- 
capped people  in  each  age  group. 


Age 


High  estimate 


Low  estimate 


0-21 
16-64* 
65  + 


9.4% 
12.0 
35.0 


5.7  % 
8.57 
20.0 


*  Institutionalized  people  are  included  in  the  0-21  and  65+  groups,  but  not  for  the  16-64  group  because  the  number 
could  not  be  determined  from  available  data. 


Table  2 

The  following  represent  the  1980  census  figures  for  the  population  broken  into  the  appropriate 
age  groups: 


0-19  years  of  age 
20-64  years  of  age 
65  +     years  of  age 


72,468,363  (A) 

128,531,000  (B) 

25,541,000  (C) 


(U.S.,  Department  of  Commerce,  Bureau  of  the  Census,  1980  U.S.  Census,  Provisional  Estimate 
of  Social,  Economic,  and  Housing  Characteristics  (1982),  p.  3.)  Using  both  high  and  low  estimates 
of  the  handicapped  population  from  table  1  provides  the  following  results: 


9.4%  of  (A)  =  6,811,992 
12.0%  of  (B)  =  15,423,720 
35.0%  of  (C)  =    8,939,350 


5.7  %  of  (A)  =    4,130,676 

8.57%  of  (B)  =  11,182,110 

20.00%  of  (C)  =    5,108,200 


TOTAL 


31,175,062 


TOTAL 


20,420,986 


This  total  represents  13.7  percent  of  the  total 
population. 


This  total  represents  9  percent  of  the  total 
population. 


>  US  GOVERNMENT  PRINTING  OFFICE        1983  -  414-192   -  814/1321 


173 


U.S.  COMMISSION   ON   CIVIL  RIGHTS 

WASHINGTON,   DC.   20425 


OFFICIAL   BUSINESS 

PENALTY  FOR   PRIVATE   USE,   $300 


BULK  RATE 

POSTAGE  AND  FEES  PAID 

U.S.  COMMISSION  ON  CIVIL  RIGHTS 

PERMIT  NO.  G73 


C1001iGALLA«151W 

GALLAGHER,    WILLIAM 
££I£UL1VE    DIRECTOR 
AMER    EON    FOR    BLIND 
15    WEST    1LTH    ST 
NEW    YORK    NY 


49 


10011 


/(o  sv-